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REMAINDER INTERESTS WHICH CAN ONLY BE DIVESTED BY A POWER OF APPOINTMENT ARE VESTED REMAINDER INTERESTS.

The Second Department determined the five individuals who were to take remainder interests in the event a power of appointment was not exercised had vested remainder interests:

In Article Third of the will, the testator created a trust for the benefit of Sydelle [his wife] during her lifetime. Upon the death of Sydelle, the remainder was to be distributed to or for the benefit of such one or more persons within a class composed of the testator’s then living issue or Sydelle’s living issue, “in such estates, interests and proportions as [Sydelle] may appoint by specific reference to this power of appointment in her last will and testament, admitted to probate.” The will provided that if Sydelle failed to exercise or did not fully or effectually exercise her power of appointment, all property not effectually appointed, was to be paid and distributed to five other named individuals. * * *

“It is a well-established rule, both of the common law and by statute, in this State that estates in remainder which are limited to take effect upon default in the exercise of a power of appointment are not prevented from vesting by the existence of the power, but take effect in the same manner as if no power existed, subject, however, to be divested by an exercise of the power” … . Where the power of appointment has not been exercised and cannot be until the death of the person with the power of appointment, it may be eliminated from consideration and the next limitation considered … . Thus, the five individuals named in Article Third … have a vested remainder interest which can be divested if Sydelle exercises her power of appointment by will … . Matter of Levitan, 2015 NY Slip Op 08838, 2nd Dept 12-2-15

TRUSTS AND ESTATES (WILL CONSTRUCTION, EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)/POWER OF APPOINTMENT (WILL CONSTRUCTION, EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)/WILL CONSTRUCTION (EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)/REMAINDER INTERESTS (WILL CONSTRUCTION, EFFECT OF POWER OF APPOINTMENT ON REMAINDER INTERESTS)

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