Contents of Wills—powers
Contents of Wills—powers

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

  • Contents of Wills—powers
  • Types of powers
  • 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

Types of powers

Under a Will or a trust, a person (the appointor) may be given the power to appoint by Will or otherwise to determine how the property of the original donor (the testator under their Will or a settlor under a trust) is to devolve. 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. In practice the Will draftsperson will be concerned with special powers.

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

General powers

General powers have been defined as 'such as the donee can exercise in favour of such a person or persons as he pleases, including himself'. There are, in addition, several statutory definitions of general powers, for example section 27 of the Wills Act 1837 (WA 1837).

A power to appoint for any persons includes power to appoint on lawful trusts or for lawful purposes.

A power to appoint in any manner the appointor thinks proper is a general power, even if

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