A Will Referring to Trusts Did Not Exercise a Power of Appointment Contained Therein Requiring a Specific Reference

The testator was the donee of testamentary powers of appointment over three trusts each of which required that the power be exercised by specific reference to the power.  The will stated that the trusts were “included” in the testator’s estate, referring to one trust by name the others only by the location of the trusts’ accounts.  The takers in default of the power filed a motion for a declaratory judgment that the testator did not exercise the powers and were granted summary judgment.  The residuary beneficiary and the executor appealed, and a Florida court affirmed, holding that the will did not refer to the powers of appointment and that the donor’s requirement of specific reference prevailed over the testator’s intent to exercise the power which otherwise might have been sufficient to do so under state law.  Cessac v. Stevens, 127 So. 3d 675 (Fla. Dist .Ct. App. 2013).

Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.