Also known as: bare residuary clauses · residuary clause
Written by attorneys — see sources below.
A residuary clause in a will that contains no reference to any powers of appointment held by the testator. Under the majority rule such a clause does not exercise a power of appointment even if the testator later expresses an intention to do so outside the will.
George held a power of appointment over trust assets. His will left the residue of his estate to his children without mentioning the power. Although George later told family members he intended the residuary clause to exercise the power, the clause is bare and therefore does not exercise it. The appointive property passes under the default provisions of the creating instrument rather than to George's children.
Helen Sullivan's will contained a bare residuary clause leaving the rest of her estate to her heirs at law living at her death. The clause made no mention of any powers of appointment. Because the clause was bare, it did not exercise any power Helen held. The property subject to the power therefore passed according to the terms of the instrument that created the power rather than under the residuary clause.
Helen A. Sullivan, a single woman approximately sixty-four years old who had worked as a school teacher, executed her will about ten days before her death. She always maintained her own home but her relations with her aunt who was her sole heir and with several first cousins were cordial and friendly. In the will, Sullivan gave general legacies in considerable sums to two of her first cousins. The residuary clause directed that the rest and residue of her estate go to her heirs at law living at the time of her decease, to be divided equally among them, with a proviso regarding the sale of real property. Approximately ten days before her death, Sullivan sent for an attorney while she was ill. She provided instructions for general pecuniary legacies and, when asked whom she wanted to leave the rest of her property to and who her nearest relations were, she replied that she had about twenty-five first cousins and wanted them to share it equally. The attorney drafted the will accordingly, read it to her, and she executed it. The will was duly proved and allowed on October 8, 1931, with letters testamentary issued. At the time of her death, Sullivan's sole heir at law was her maternal aunt, Frances Hawkes Greene, who was named in the petition for probate. The first cousins filed a petition in probate court seeking distribution of the legacy under the residuary clause to them. The probate court denied the petition. The trial judge reported material facts, including that statements by the testatrix were admissible only to show circumstances surrounding execution, and ruled there was no latent ambiguity permitting introduction of her statements to prove intent. The first cousins appealed from the decree dismissing their petition.
View caseNo. The general rule is that a bare residuary clause that makes no reference to any powers of appointment does not exercise a power of appointment. Under the majority approach the clause is presumed not to have exercised the power.
Jurisdictions are split on whether statements by the testator to family members that the residuary clause exercises the power are admissible as evidence of intent. Under the UPC a basic residuary clause expresses an intention to exercise a power only if the power is general and exercisable in favor of the powerholder's estate and the creating instrument contains no effective gift in default, or if the will manifests an intention to include the appointive property.
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