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702.01(6) (6) "Unclassified power" means a power which is neither a general power nor a special power as defined in this section.
Effective date note NOTE: Sub. (6) is repealed eff. 7-1-14 by 2013 Wis. Act 92.
702.01 History History: 1971 c. 66; 1983 a. 189; 1993 a. 486; 2013 a. 92.
702.02 702.02 Definitions. As used in this chapter, unless the context indicates otherwise:
Effective date note NOTE: Section 702.02 (title) and (intro.) are shown as renumbered from s. 702.01 (title) and (intro.) eff. 7-1-14 by 2013 Wis. Act 92.
702.02(1) (1) "Appointee" means the person to whom an interest is appointed.
Effective date note NOTE: Sub. (1) is created eff. 7-1-14 by 2013 Wis. Act 92.
702.02(2) (2) "Creating instrument" means the will, trust agreement, or other document which creates or reserves the power of appointment.
Effective date note NOTE: Sub. (2) is shown as renumbered from s. 702.01 (1) and amended eff. 7-1-14 by 2013 Wis. Act 92.
702.02(3) (3) "Donee" means the person in whom the power of appointment is created or reserved.
Effective date note NOTE: Sub. (3) is created eff. 7-1-14 by 2013 Wis. Act 92.
702.02(4) (4) "Donor" means the person who creates or reserves the power of appointment.
Effective date note NOTE: Sub. (4) is shown as renumbered from s. 702.01 (2) and amended eff. 7-1-14 by 2013 Wis. Act 92.
702.02(5) (5) "General power of appointment" means a power exercisable in favor of the donee, the donee's estate, the donee's creditors, or the creditors of the donee's estate, whether or not it is also exercisable in favor of others. A power to appoint to any person or a power of appointment that is not expressly restricted as to appointees may be exercised in favor of the donee or the donee's creditors if exercisable during lifetime, and in favor of the donee's estate or the creditors of the donee's estate if exercisable by will.
Effective date note NOTE: Sub. (5) is shown as renumbered from s. 702.01 (3) and amended eff. 7-1-14 by 2013 Wis. Act 92.
702.02(6) (6) "Power of appointment" means a power to appoint legal or equitable interests in real or personal property. A power of appointment is created or reserved by a person having property subject to his or her disposition which enables the donee of the power of appointment to designate, within such limits as may be prescribed, the transferees of the property or the shares or the interests in which it shall be received. A power of appointment does not include a power of sale, a power of attorney, a power of revocation, or a power exercisable by a trustee, a directing party, as defined in s. 701.0103 (7), another fiduciary in his or her fiduciary capacity, or a trust protector, as defined in s. 701.0103 (31).
Effective date note NOTE: Sub. (6) is shown as renumbered from s. 702.01 (4) and amended eff. 7-1-14 by 2013 Wis. Act 92.
702.02(7) (7) "Special power of appointment" means a power of appointment that is not a general power of appointment.
Effective date note NOTE: Sub. (7) is shown as renumbered from s. 702.01 (5) and amended eff. 7-1-14 by 2013 Wis. Act 92.
702.02 History History: 1971 c. 66; 1983 a. 189; 1993 a. 486; 2013 a. 92 ss. 302 to 310; Stats. 2013 s. 702.02.
702.03 702.03 Manifestation of intent to exercise a power of appointment.
702.03(1)(1) Unless the person who executed it had a contrary intention, if a creating instrument creates a power of appointment that expressly requires that the power of appointment be exercised by any type of reference to the power of appointment or its source, the donor's intention in requiring the reference is presumed to be to prevent an inadvertent exercise of the power of appointment. Extrinsic evidence, as defined in s. 854.01 (1), may be used to construe the intent.
702.03(2) (2) In the case of other powers of appointment, a creating instrument manifests an intent to exercise the power of appointment if the creating instrument purports to transfer an interest in the appointive property which the donee would have no power to transfer except by virtue of the power of appointment, even though the power of appointment is not recited or referred to in the creating instrument, or if the creating instrument either expressly or by necessary implication from its wording interpreted in light of the circumstances surrounding its drafting and execution manifests an intent to exercise the power of appointment. If there is a general power of appointment exercisable by will with no gift in default in the creating instrument, a residuary clause or other general language in the donee's will purporting to dispose of all of the donee's estate or property operates to exercise the power of appointment in favor of the donee's estate, but in all other cases such a clause or language does not in itself manifest an intent to exercise a power of appointment exercisable by will.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.03Manifestation of intent to exercise powers. (1) Unless the person who executed it had a contrary intention, if a governing instrument, as defined in s. 854.01 (2), or an inter vivos governing instrument, as defined in s. 700.27 (1) (c), creates a power of appointment that expressly requires that the power be exercised by any type of reference to the power or its source, the donor's intention in requiring the reference is presumed to be to prevent an inadvertent exercise of the power. Extrinsic evidence, as defined in s. 854.01 (1), may be used to construe the intent.
Effective date text (2) In the case of other powers, an instrument manifests an intent to exercise the power if the instrument purports to transfer an interest in the appointive property which the donee would have no power to transfer except by virtue of the power, even though the power is not recited or referred to in the instrument, or if the instrument either expressly or by necessary implication from its wording interpreted in light of the circumstances surrounding its drafting and execution manifests an intent to exercise the power. If there is a general power exercisable by will with no gift in default in the creating instrument, a residuary clause or other general language in the donee's will purporting to dispose of all of the donee's estate or property operates to exercise the power in favor of the donee's estate, but in all other cases such a clause or language does not in itself manifest an intent to exercise a power exercisable by will.
702.03 History History: 1997 a. 188; 2005 a. 216; 2013 a. 92.
702.03 Annotation Under the prior version of sub. (1) an executing instrument was required to contain both a specific reference to the power and expressly manifest an intent to exercise the power or transfer property. The current version recognizes that a specific power of appointment requirement creates a presumption that the specific reference was intended to prevent inadvertent exercise. This presumption can be overcome if it can be demonstrated that the donee had knowledge of and intended to exercise the power. Czaplewski v. Shepherd, 2012 WI App 116, 344 Wis. 2d 440, 823 N.W.2d 523, 11-2521.
702.05 702.05 Exercise of a power of appointment.
702.05(1) (1) Capacity to exercise a power of appointment. A power of appointment can be exercised only by a person who would have the capacity to transfer the property covered by the power of appointment.
Effective date note NOTE: Section 702.05 (title) and (1) are shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 they read:
Effective date text 702.05Exercise of powers. (1)Capacity to exercise power. A power can be exercised only by a person who would have the capacity to transfer the property covered by the power.
702.05(2) (2)Kind of instrument and formalities of execution. A donee can exercise a power of appointment only by an instrument which meets the intent of the donor as to kind of instrument and formalities of execution. If the power of appointment is exercisable by will, this means a will executed with the formalities necessary for a valid will. A written instrument signed by the donee is sufficient if the donor fails to require any additional formalities or fails to indicate a will, but if the power of appointment is to appoint interests in land, it can be exercised only by an instrument executed with sufficient formalities for that purpose.
Effective date note NOTE: Sub. (2) is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text (2)Kind of instrument and formalities of execution. A donee can exercise a power only by an instrument which meets the intent of the donor as to kind of instrument and formalities of execution. If the power is exercisable by will, this means a will executed with the formalities necessary for a valid will. A written instrument signed by the donee is sufficient if the donor fails to require any additional formalities or fails to indicate a will, but if the power is to appoint interests in land, it can be exercised only by an instrument executed with sufficient formalities for that purpose.
702.05(3) (3)Consent of 3rd persons. When the consent of the donor or of any other person is required by the donor for the exercise of a power of appointment, such consent must be expressed in the creating instrument exercising the power of appointment or in a separate written instrument, signed in either case by the persons whose consent is required. If any person whose consent is required dies or becomes legally incapable of consenting, the power of appointment may be exercised by the donee without the consent of that person unless the donor has manifested a contrary intent in the creating instrument.
Effective date note NOTE: Sub. (3) is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text (3)Consent of 3rd persons. When the consent of the donor or of any other person is required by the donor for the exercise of a power, such consent must be expressed in the instrument exercising the power or in a separate written instrument, signed in either case by the persons whose consent is required. If any person whose consent is required dies or becomes legally incapable of consenting, the power may be exercised by the donee without the consent of that person unless the donor has manifested a contrary intent in the instrument creating the power.
702.05(4) (4)Power of appointment vested in 2 or more donees. Unless the donor manifests a contrary intent, when a power of appointment is vested in 2 or more persons, all must unite in its exercise, but if one or more of the donees dies, becomes incapable of exercising the power of appointment, or renounces, releases, or disclaims the power of appointment, the power of appointment may be exercised by the others.
Effective date note NOTE: Sub. (4) is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text (4)Power vested in 2 or more donees. Unless the donor manifests a contrary intent, when a power is vested in 2 or more persons, all must unite in its exercise, but if one or more of the donees dies, becomes incapable of exercising the power or renounces, releases or disclaims the power, the power may be exercised by the others.
702.05(5) (5)Presumption of nonexercise of a power of appointment. A personal representative, trustee, or other fiduciary who holds property subject to a power of appointment may administer that property as if the power of appointment was not exercised if the personal representative, trustee, or other fiduciary has no notice of the existence of any of the following within 6 months after the death of the donee of the power of appointment:
702.05(5)(a) (a) A document purporting to be a will of the donee of the power of appointment if the power of appointment is exercisable by a will.
702.05(5)(b) (b) Some other documentation of the donee purporting to exercise the power of appointment if the power of appointment is exercisable other than by a will.
Effective date note NOTE: Sub. (5) is created eff. 7-1-14 by 2013 Wis. Act 92.
702.05 History History: 1971 c. 66; 1977 c. 309; 2005 a. 253; 2013 a. 92.
702.05 Annotation A warranty deed grants a present fee simple interest. A purported reservation of a power of appointment in a warranty deed is ineffective. Powers may be reserved and a lesser interests granted, but not by warranty deed. Lucareli v. Lucareli, 2000 WI App 133, 237 Wis. 2d 487, 614 N.W.2d 60, 99-1679.
702.07 702.07 Power of appointment to be construed as exclusive. The donee of any power of appointment may appoint the whole or any part of the appointive assets to any one or more of the permissible appointees and exclude others, except to the extent that the donor specifies either a minimum share or amount to be appointed to each permissible appointee or to designated appointees, or a maximum share or amount appointable to any one or more appointees.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.07Powers to be construed as exclusive. The donee of any power may appoint the whole or any part of the appointive assets to any one or more of the permissible appointees and exclude others, except to the extent that the donor specifies either a minimum share or amount to be appointed to each permissible appointee or to designated appointees, or a maximum share or amount appointable to any one or more appointees.
702.07 History History: 2013 a. 92.
702.08 702.08 Disclaimer of a power of appointment. The donee of any power of appointment may disclaim all or part of the power of appointment as provided under s. 700.27 or 854.13.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.08Disclaimer of powers. The donee of any power may disclaim all or part of the power as provided under s. 700.27 or 854.13.
702.08 History History: 1977 c. 309; 1997 a. 188; 2005 a. 216; 2013 a. 92.
702.09 702.09 Release of a power of appointment.
702.09(1) (1) Unless the creating instrument expressly provides that the power of appointment cannot be released or expressly restricts the time, manner, or scope of release, the donee of any power of appointment may do any of the following:
702.09(1)(a) (a) At any time completely release the donee's power of appointment.
702.09(1)(b) (b) At any time or times release the donee's power of appointment in any one or more of the following respects:
702.09(1)(b)1. 1. As to the whole or any part of the property which is subject thereto.
702.09(1)(b)2. 2. As to any one or more persons or objects, or classes of persons or objects, in whose favor such power of appointment is exercisable.
702.09(1)(b)3. 3. So as to limit in any other respect the extent to or manner in which the power of appointment may be exercised.
Effective date note NOTE: Section 702.09 (title) and (1) are shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 they read:
Effective date text 702.09Release of powers. (1) Except as the creating instrument expressly provides that the power cannot be released or expressly restricts the time, manner or scope of release, the donee of any power may:
Effective date text (a) At any time completely release the donee's power;
Effective date text (b) At any time or times release the donee's power in any one or more of the following respects:
Effective date text 1. As to the whole or any part of the property which is subject thereto;
Effective date text 2. As to any one or more persons or objects, or classes of persons or objects, in whose favor such power is exercisable;
Effective date text 3. So as to limit in any other respect the extent to or manner in which it may be exercised.
702.09(2) (2) A release may be effected, either with or without consideration, by written instrument signed by the donee and delivered.
702.09(3) (3) Delivery of a release may be accomplished in any of the following manners, but this subsection is permissive and does not preclude a determination that a release has been delivered in some other manner:
702.09(3)(a) (a) Delivery to any person specified in the creating instrument.
702.09(3)(b) (b) Delivery to a trustee or to one of several trustees of the property to which the power of appointment relates, or filing with the court having jurisdiction over the trust.
702.09(3)(c) (c) Delivery to any person, other than the donee, who could be adversely affected by an exercise of the power of appointment.
702.09(3)(d) (d) Recording in the office of register of deeds in the county where the property is located.
Effective date note NOTE: Sub. (3) is shown as affected eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text (3) Delivery of a release may be accomplished in any of the following manners, but this subsection is permissive and does not preclude a determination that a release has been delivered in some other manner:
Effective date text (a) Delivery to any person specified in the creating instrument;
Effective date text (b) Delivery to a trustee or to one of several trustees of the property to which the power relates, or filing with the court having jurisdiction over the trust;
Effective date text (c) Delivery to any person, other than the donee, who could be adversely affected by an exercise of the power; or
Effective date text (d) Recording in the office of register of deeds in the county where the property is located.
702.09 History History: 1993 a. 301, 486; 2013 a. 92.
702.11 702.11 Irrevocability of creation, exercise and release of a power of appointment. The creation, exercise or release of a power of appointment is irrevocable unless the power to revoke is reserved in the creation, exercise or release of the power of appointment.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.11Irrevocability of creation, exercise and release of powers. The creation, exercise or release of a power is irrevocable unless the power to revoke is reserved in the creation, exercise or release of the power.
702.11 History History: 2013 a. 92.
702.13 702.13 Recording instruments relating to a power of appointment.
702.13(1)(1) Any of the following instruments relating to a power of appointment is entitled to be recorded as a conveyance upon compliance with s. 706.05 (1):
702.13(1)(a) (a) An instrument, other than a will, exercising a power of appointment.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 11, 2014. Published and certified under s. 35.18. Changes effective after April 11, 2014 are designated by NOTES. (Published 4-11-14)