A husband and his wife executed a marital property agreement in accordance with Wisconsin law giving the survivor a testamentary non-general power of appointment over the survivor’s probate property to be exercised by specific reference to the power in the survivor’s will. In default of appointment, the property passes equally to the couple’s three children. The husband survived and left a will making no reference to the power of appointment which gave the residuary estate to in equal shares to two of the three children, the remaining third being divided equally among one child and her two daughters. The intermediate Wisconsin appellate court affirmed the trial court’s finding that the will exercised the power, holding that because the donor’s intention in requiring a specific reference to exercise a power of appointment is presumed to be to prevent an inadvertent exercise and that because the will was ambiguous, the testimony of the drafting attorney that the omission of a reference to the power was a drafting error was admissible.
See In re Estate of Shepherd, 823 N.W.2d 523 (Wis. Ct. App. 2012).
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.
