Deciding how your estate should be distributed after your death is not an easy task, so one can see why a will-maker might want to avoid this difficult decision by including a power of appointment in their will. A power of appointment is a power given to a person to select who shall receive an interest in property. The power can be general (the property can be given to anyone) or special (the property can be given to a limited class of people).
In the recent BC Supreme Court decision, Tassone v. Pearson, Mrs. Pearson’s will (handwritten on a stationer’s form) included a general power of appointment and provided that her estate was to be distributed “as seen appropriate” by her executrix. The executrix (Mrs. Pearson’s granddaughter) decided it was most appropriate to distribute the entire estate to herself. Mrs. Pearson’s other grandchildren took issue with this and argued that general powers of appointment found in a will are not valid since they conflict with the fundamental principal that the person making the will must dispose of their assets and is not allowed to delegate this responsibility to others.
The principal issue in the case was whether a general power of appointment found in a will is valid. After reviewing the case law and various academic articles, the Court found that general powers of appointment have been a fixture in the drafting of wills in Canada and England for centuries and do not violate the anti-delegation rule, but are instead an exception to this rule. Accordingly, the Court found that Mrs. Pearson’s will created a general power of appointment in favour of her executrix and therefore, the executrix was entitled to exercise her discretion as she wished, including transferring the whole of the estate to herself.