Also known as: specific references
Written by attorneys · grounded in primary & secondary sources — see below
A formal requirement imposed by the donor of a power of appointment that the instrument exercising the power must explicitly refer to the power.
Scott Summers creates a trust granting his daughter Sasha a general testamentary power of appointment over the remainder. The trust instrument states that exercise is effective only if the will makes specific reference to the power. Sasha's will contains a general residuary clause but never mentions the power. The court holds the attempted exercise ineffective because the will failed to satisfy the donor-imposed specific-reference requirement.
Donor creates a trust giving Daughter a general testamentary power and requires any exercise to make specific reference to the power. Daughter's will contains a clause exercising any power she may hold but never names the particular power. The court holds the exercise ineffective for failure to satisfy the donor's specific-reference requirement.
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Donor imposes a specific-reference requirement when creating Son's power of appointment. Son's will recites the trust date and states an intent to exercise the power over the trust remainder without quoting the exact language. The court finds substantial compliance because Son knew of and intended to exercise the power and no material donor purpose was impaired.
After the 1942 federal estate-tax amendment, Donor still includes a specific-reference clause when granting Daughter a general power. Daughter's will exercises the power only by a general residuary clause. The court holds the requirement effective and the attempted exercise invalid because the clause overrides any residuary presumption.
No. A donor-imposed requirement that the instrument of exercise make specific reference to the power overrides any presumption that a residuary clause exercises the power. The donee must use language that expressly identifies the power.
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The requirement prevents inadvertent exercise of the power by ensuring the donee deliberately focuses on the power and the donor's intent rather than relying on default rules that might attribute an exercise to a general residuary clause.
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Yes, under the Restatement rule, substantial compliance is sufficient if the donee knew of and intended to exercise the power and the manner of exercise did not impair a material purpose of the donor in imposing the requirement.
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…downtown, Mrs. Prince permitted the children “to engage in the preaching work with her upon the sidewalks.” That is, with specific reference to Betty, she and Mrs. Prince took positions about twenty feet apart near a street intersection. Betty held up in her hand, for passers-by to see, copies of “Watch Tower” and “Consolation.”…