trusts and estates
A discretionary power of appointment is distinguished from a mandatory power of appointment in that its exercise is optional. The power is valid so long as there is at least one person who reasonably fits the description of the class whose favor in which the power can be exercised (the objects of the power). If the person with power of appointment (the donee) chooses to exerci
If a power is mandatory, then there is a duty to exercise it. A mandatory power of appointment can be contrasted with a discretionary power of appointment. If the power holder fails to exercise the mandatory power of appointment, the court must step in and execute the power by distributing all of the property in favor of the persons in whose favor the power may have been exercised.
In the context of a power of appointment, appointive assets refer to the property subject to the power.
In the context of a power of appointment, the takers in default are the individuals who take if the power is not properly exercised. These individuals or class of individuals are usually named in the “takers in default clause.”
A precatory trust is an express trust that is created with language that expresses a future intent or a wish, but in which the court nevertheless finds legally enforceable duties. Normally trust language must express a present intent to create legally enforceable duties on the trustee in order to have trust intent. If there is no trust intent, the trust fails. Sometimes the court will non