Power of Appointment Legislation in New York: It's Time for Modernization
Bloom, Ira Mark, Albany Law Review
A. Requisites for Exercise of a Power of Appointment
1. Current New York Law
New York has several provisions regarding the exercise of the power of appointment. They include: 10-6.1 Exercise of a power of appointment; manifestation of intention of done
(a) Subject to paragraph (b), an effective exercise of a power of appointment does not require an express reference to such power. A power is effectively exercised if the donee manifests his intention to exercise it. Such a manifestation exists when the donee:
(1) Declares in substance that he is exercising all the powers he has;
(2) Sufficiently identifying the appointive property or any part thereof, executes an instrument purporting to dispose of such property or part;
(3) Makes a disposition which, when read with reference to the property he owned and the circumstances existing at the time of its making, manifests his understanding that he was disposing of the appointive property; or
(4) Leaves a will disposing of all of his property or all of his property of the kind covered by the power, unless the intention that the will is not to operate as an execution of the power appears expressly or by necessary implication.
(b) If the donor has expressly directed that no instrument shall be effective to exercise the power unless it contains a specific reference to the power, an instrument not containing such reference does not validly exercise the power.161
10-6.2 Exercise of a power of appointment; conformity to directions of donor
(a) Subject to the power of a court of competent jurisdiction to remedy a defective execution of an imperative power of appointment, the directions of the donor as to the manner, time and conditions of the exercise of a power must be observed, except that:
(1) Where the donor has authorized it to be exercised by an instrument legally insufficient to dispose of the appointive property, the manner of exercise is to be determined by the provisions of this article.
(2) Where the donor has directed any formality to be observed in its exercise, in addition to those which would be legally sufficient to dispose of the appointive property, such additional formality is not necessary to a valid exercise of such power.
(3) Where the donor has made the power exercisable only by deed, it is also exercisable by a written will unless exercise by will is expressly excluded.
(4) Where the donor of a general power of appointment has not expressly imposed a requirement of good faith or of reasonableness with respect to the donee's exercise of such power, neither such requirement shall be implied. (162)
10-6.3 Exercise of a power of appointment; type of instrument A power of appointment can be exercised only by a written instrument which would be sufficient to dispose of the estate intended to be appointed if the donee were the actual owner. (163)
10-6.4 Exercise of a power of appointment; required consents
(a) When the consent of the donor or of a third person to the exercise of a power of appointment is required, such consent shall be expressed in a written instrument, subscribed by the person whose consent is required; and to entitle the instrument of exercise to be recorded, the signatures of the donee and of the person consenting must be acknowledged or proved in the manner required by the laws of this state for the recording of a deed of real property.
(b) Unless the donor expressly provides otherwise:
(1) When the consents of two or more persons are required for the exercise of a power of appointment, all must consent.
(2) If before the exercise of the power:
(A) One or more of such persons die, the consent of the survivor is sufficient.
(B) One or more of such persons become incompetent, the consent of the competent person is sufficient. …