SB759,69,2121 SUBCHAPTER I
SB759,69,2222 GENERAL PROVISIONS
SB759,69,24 23702.101 Short title. This act may be cited as the Uniform Powers of
24Appointment Act.
SB759,69,25 25702.102 Definitions. In this chapter:
SB759,70,2
1(1) “Appointee” means a person to which a powerholder makes an appointment
2of appointive property.
SB759,70,4 3(2) “Appointive property” means the property or property interest subject to a
4power of appointment.
SB759,70,7 5(3) “Blanket-exercise clause” means a clause in an instrument that exercises
6a power of appointment and is not a specific-exercise clause. “Blanket-exercise
7clause” includes a clause that does any of the following:
SB759,70,98 (a) Expressly uses the words “any power” in exercising a power of appointment
9the powerholder has.
SB759,70,1110 (b) Expressly uses the words “any property” in appointing any property over
11which a powerholder has a power of appointment.
SB759,70,1212 (c) Disposes of all property subject to disposition by the powerholder.
SB759,70,15 13(4) “Broad limited power of appointment” means a power of appointment
14exercisable in favor of anyone other than the powerholder, the powerholder's estate,
15the powerholder's creditors, or the creditors of the powerholder's estate.
SB759,70,16 16(5) “Donor” means a person that creates a power of appointment.
SB759,70,19 17(6) “Exclusionary power of appointment” means a power of appointment
18exercisable in favor of one or more permissible appointees to the exclusion of the
19other permissible appointees.
SB759,70,22 20(7) “General power of appointment” means a power of appointment exercisable
21in favor of the powerholder, the powerholder's estate, a creditor of the powerholder,
22or a creditor of the powerholder's estate.
SB759,70,24 23(8) “Gift-in-default clause” means a clause that identifies a taker in default
24of appointment.
SB759,71,2
1(9) “Impermissible appointee” means a person that is not a permissible
2appointee.
SB759,71,3 3(10) “Instrument” means a writing.
SB759,71,5 4(11) “Nongeneral power of appointment” means a power of appointment that
5is not a general power of appointment.
SB759,71,7 6(12) “Permissible appointee” means a person in whose favor a powerholder may
7exercise a power of appointment.
SB759,71,10 8(13) “Person” means an individual, estate, trust, business or nonprofit entity,
9public corporation, government or governmental subdivision, agency, or
10instrumentality, or other legal entity.
SB759,71,14 11(14) “Power of appointment” means a power that enables a powerholder acting
12in a nonfiduciary capacity to designate a recipient of an ownership interest in or
13another power of appointment over the appointive property. “Power of appointment”
14does not include a power of attorney.
SB759,71,16 15(15) “Powerholder” means a person in which a donor creates a power of
16appointment.
SB759,71,24 17(16) “Presently exercisable power of appointment” means a power of
18appointment exercisable by the powerholder at the relevant time. “Presently
19exercisable power of appointment” includes a power of appointment that is not
20exercisable until the occurrence of a specified event, the satisfaction of an
21ascertainable standard, or the passage of a specified time, and only after the
22occurrence of the specified event, the satisfaction of the ascertainable standard, or
23the passage of the specified time, but does not include a power exercisable only at the
24powerholder's death.
SB759,72,2
1(17) “Specific-exercise clause” means a clause in an instrument that
2specifically refers to and exercises a particular power of appointment.
SB759,72,5 3(18) “Taker in default of appointment” means a person that takes all or part
4of the appointive property to the extent the powerholder does not effectively exercise
5the power of appointment.
SB759,72,9 6(19) “Terms of the instrument” means the manifestation of the intent of the
7maker of the instrument regarding the instrument's provisions as expressed in the
8instrument or as may be established by other evidence that would be admissible in
9a legal proceeding.
SB759,72,16 10702.103 Governing law. Unless the terms of the instrument creating a power
11of appointment manifest a contrary intent, the creation, revocation, or amendment
12of a power of appointment is governed by the law of the donor's domicile at the
13relevant time. The exercise, release, or disclaimer of a power of appointment, or the
14revocation or amendment of an exercise, release, or disclaimer of a power of
15appointment is governed by the law of the powerholder's domicile at the relevant
16time.
SB759,72,19 17702.104 Common law and principles of equity. The common law and
18principles of equity supplement this chapter, except to the extent modified by this
19chapter or any other state law.
SB759,72,21 20702.105 Default rules. The terms of a governing instrument prevail over any
21provision of this subchapter.
SB759,72,2222 SUBCHAPTER II
SB759,72,2423 CREATION, REVOCATION, AND AMENDMENT
24 OF POWER OF APPOINTMENT
SB759,73,2
1702.201 Creation of power of appointment. (1) A power of appointment
2is created only if the instrument creating the power satisfies all of the following:
SB759,73,33 (a) The instrument is valid under applicable law.
SB759,73,54 (b) Except as provided in sub. (2), the instrument governs the disposition of the
5appointive property.
SB759,73,86 (c) The terms of the instrument manifest the donor's intent to create in a
7powerholder a power of appointment over the appointive property exercisable in
8favor of a permissible appointee.
SB759,73,10 9(2) Subsection (1) (b) does not apply to a power of appointment that is created
10by the exercise of a power of appointment.
SB759,73,11 11(3) A power of appointment may not be created in a deceased individual.
SB759,73,13 12(4) A power of appointment may be created in an unborn or unascertained
13powerholder.
SB759,73,16 14702.202 Nontransferability. A powerholder may not transfer a power of
15appointment. If a powerholder dies without exercising or releasing a power of
16appointment, the power lapses.
SB759,73,19 17702.203 Presumption of unlimited authority. Subject to ss. 702.204 and
18702.205, and unless the terms of the instrument creating a power of appointment
19manifest a contrary intent, a power of appointment is all of the following:
SB759,73,20 20(1) A presently exercisable power of appointment.
SB759,73,21 21(2) An exclusionary power of appointment.
SB759,73,22 22(3) A general power of appointment.
SB759,73,25 23702.204 Exception to presumption of unlimited authority. Unless the
24terms of the instrument creating a power of appointment manifest a contrary intent,
25the power is a nongeneral power of appointment if all of the following apply:
SB759,74,1
1(1) The power is exercisable only at the powerholder's death.
SB759,74,4 2(2) The permissible appointees of the power are a defined and limited class that
3does not include the powerholder's estate, the powerholder's creditors, or the
4creditors of the powerholder's estate.
SB759,74,9 5702.205 Rules of classification. (1) In this section, “ adverse party” means
6a person with a substantial beneficial interest in appointive property that would be
7affected adversely by a powerholder's exercise or nonexercise of a power of
8appointment in favor of the powerholder, the powerholder's estate, a creditor of the
9powerholder, or a creditor of the powerholder's estate.
SB759,74,11 10(2) If a powerholder may exercise a power of appointment only with the consent
11or joinder of an adverse party, the power is a nongeneral power of appointment.
SB759,74,13 12(3) If the permissible appointees of a power of appointment are not defined and
13limited, the power is an exclusionary power of appointment.
SB759,74,15 14702.206 Power to revoke or amend. A donor may revoke or amend a power
15of appointment only to the extent that any of the following applies:
SB759,74,16 16(1) The instrument creating the power is revocable by the donor.
SB759,74,18 17(2) The donor reserves a power of revocation or amendment over the power of
18appointment in the instrument.
SB759,74,1919 SUBCHAPTER III
SB759,74,2020 EXERCISE OF POWER OF APPOINTMENT
SB759,74,22 21702.301 Requisites for exercise of power of appointment. (1) (a) A power
22of appointment is exercised only if all of the following apply:
SB759,74,2323 1. The instrument exercising the power is valid under applicable law.
SB759,74,2424 2. The terms of the instrument exercising the power do all of the following:
SB759,74,2525 a. Manifest the powerholder's intent to exercise the power.
SB759,75,2
1b. Subject to s. 702.304, satisfy the requirements of exercise, if any, imposed by
2the donor.
SB759,75,43 (b) A power of appointment is exercised under par. (a) only to the extent the
4appointment is a permissible exercise of the power.
SB759,75,12 5(2)  If the donor requires the consent of the donor or any other person for the
6exercise of a power of appointment, the consent must be expressed in the instrument
7exercising the power of appointment or in a separate written instrument, signed in
8either case by the persons whose consent is required. If any person whose consent
9is required dies or becomes legally incapable of consenting, the power of appointment
10may be exercised by the powerholder without the consent of that person unless the
11terms of the instrument creating the power of appointment manifest a contrary
12intent.
SB759,75,16 13(3) (a) Except as provided in par. (b) and unless the terms of the instrument
14creating a power of appointment manifest a contrary intent, if a power of
15appointment is vested in 2 or more persons, the joint powerholders may only exercise
16the power of appointment unanimously.
SB759,75,2017 (b) If a power of appointment is vested in 2 or more persons and one or more
18of the joint powerholders die, become incapable of exercising the power of
19appointment, or renounce, release, or disclaim the power of appointment, the power
20of appointment may be exercised unanimously by the other powerholders.
SB759,75,22 21702.302 Intent to exercise: determining intent from residuary clause.
22(1)
In this section:
SB759,75,2423 (a) “Residuary clause” does not include a residuary clause containing a
24blanket-exercise clause or a specific-exercise clause.
SB759,76,2
1(b) “Will” includes a codicil and a testamentary instrument that revises another
2will.
SB759,76,5 3(2) A residuary clause in a powerholder's will, or a comparable clause in the
4powerholder's revocable trust, manifests the powerholder's intent to exercise a
5power of appointment only if all of the following apply:
SB759,76,76 (a) The terms of the instrument containing the residuary clause do not manifest
7a contrary intent.
SB759,76,98 (b) The power of appointment is a general power of appointment exercisable in
9favor of the powerholder's estate.
SB759,76,1210 (c) There is no gift-in-default clause in the instrument creating the power of
11appointment or the gift-in-default clause in the instrument creating the power of
12appointment is ineffective.
SB759,76,1313 (d) The powerholder did not release the power of appointment.
SB759,76,16 14702.303 Intent to exercise: after-acquired power. Unless the terms of the
15instrument exercising a power of appointment manifest a contrary intent, all of the
16following apply:
SB759,76,19 17(1) Except as otherwise provided in sub. (2), a blanket-exercise clause extends
18to a power of appointment acquired by the powerholder after executing the
19instrument containing the clause.
SB759,76,22 20(2) If the powerholder is also the donor of the power of appointment, a
21blanket-exercise clause does not extend to the power of appointment unless there is
22not a gift-in-default clause or the gift-in-default clause is ineffective.
SB759,77,2 23702.304 Substantial compliance with donor-imposed formal
24requirement.
A powerholder's substantial compliance with a formal requirement
25of appointment imposed by the donor, including a requirement that the instrument

1exercising the power of appointment make reference or specific reference to the
2power, is sufficient if all of the following apply:
SB759,77,4 3(1) The powerholder knows of and intends to exercise the power of
4appointment.
SB759,77,7 5(2) The powerholder's manner of attempted exercise of the power of
6appointment does not impair a material purpose of the donor in imposing the
7requirement.
SB759,77,12 8702.305 Permissible appointment. (1) A powerholder of a general power
9of appointment that permits appointment to the powerholder or the powerholder's
10estate may make any appointment, including an appointment in trust or creating a
11new power of appointment, that the powerholder could make in disposing of the
12powerholder's own property.
SB759,77,15 13(2) A powerholder of a general power of appointment that permits appointment
14only to the creditors of the powerholder or the creditors of the powerholder's estate
15may appoint only to those creditors.
SB759,77,18 16(3) Unless the terms of the instrument creating a power of appointment
17manifest a contrary intent, the powerholder of a nongeneral power of appointment
18may do any of the following:
SB759,77,2019 (a) Make an appointment in any form, including an appointment in trust, in
20favor of a permissible appointee.
SB759,77,2321 (b) Create a general or nongeneral power of appointment in a permissible
22appointee that may be exercisable in favor of persons other than permissible
23appointees of the original nongeneral power of appointment.
SB759,78,3
1(c) Create a nongeneral power of appointment in any person to appoint to one
2or more of the permissible appointees of the original nongeneral power of
3appointment.
SB759,78,6 4702.306 Appointment to a deceased appointee. Subject to s. 854.06, an
5exercise of a power of appointment is ineffective to the extent it is in favor of a
6deceased appointee.
SB759,78,9 7702.307 Impermissible appointment. (1) Except as otherwise provided in
8s. 702.306, an exercise of a power of appointment is ineffective to the extent it is in
9favor of an impermissible appointee.
SB759,78,11 10(2) An exercise of a power of appointment in favor of a permissible appointee
11is ineffective to the extent the appointment is a fraud on the power.
SB759,78,15 12702.308 Selective allocation doctrine. If a powerholder exercises a power
13of appointment in a disposition that also disposes of property the powerholder owns,
14the owned property and the appointive property must be allocated in the permissible
15manner that best carries out the powerholder's intent.
SB759,78,19 16702.309 Capture doctrine: disposition of ineffectively appointed
17property under general power.
To the extent a powerholder of a general power
18of appointment, other than a power to withdraw property from, revoke, or amend a
19trust, makes an ineffective appointment, all of the following apply:
SB759,78,21 20(1) The gift-in-default clause controls the disposition of the ineffectively
21appointed property.
Loading...
Loading...