Contents of Wills—powers of appointment

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Contents of Wills—powers of appointment
  • Types of powers of appointment
  • General powers
  • Special powers
  • Hybrid powers
  • Testamentary exercise of powers
  • Devolution of property—general powers
  • Devolution of property—special powers
  • Devolution of property—hybrid powers

Contents of Wills—powers of appointment

Under a Will or a trust, a person may be given the power to appoint by their Will or otherwise to determine how the property of the original donor (the testator of a Will or a settlor of a trust) is to devolve. The person in whom this power is vested is known as the appointor. A power of appointment is a dispositive or distributive power and authorisies a person to create or dispose of or distribute beneficial interests in property.

This Practice Note contains a brief outline of the classifications of such powers.

Types of powers of appointment

A power of appointment may be classified as one of three types: general, special or hybrid. The basic distinction is between general and special powers. A general power may be defined as one that the appointor may exercise in favour of anyone they please, including themselves. Other powers, including all those exercisable in favour only of a defined class of beneficiaries, are special, although the courts have recognised an intermediate category known as hybrid powers.

Personal representatives (PRs) will require legal advice where the testator had a power of appointment.

The importance of the distinction between the different types of powers may be relevant for a number of reasons, including in relation to the doctrine of fraud on a power, whether the power falls within section

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