I would be grateful for thoughts/opinions on the interpretation of a will clause defining “my Estate” as:-
“all my real and personal property of every kind wherever situate over which I have a general power of appointment; and
the money investments and property from time to time representing all such property”
Is it considered that this definition is sufficient to pass not only those assets under which the deceased may have had a general power of appointment, but also those assets legally and beneficially belonging to them at the time of their death (i.e. the assets the deceased did not have an express general power of appointment over).
This looks like a typographical error in the will to me, in incorporating the usual definition, and would likely be rectifiable. Is it homemade or professionally drafted? Presumable the instructions don’t suggest the testator only wanted to exercise the power of appointment and not dispose of the actual estate?
New Square Chambers
Many thanks for your response.
These were our thoughts exactly. The will was not homemade, we have contacted the company to query the definition and raise our concerns and unfortunately they did not see that there was any issue. Furthermore, they confirmed that the drafting was intentional (which, on our initial thoughts, means that a claim for rectification might not be possible). They are of the understanding that a person has a general power of appointment over their whole estate as a matter of course and therefore the definition covers all assets in the estate.
This is useful for rectification if you have it in writing because it shows the testator intended to refer to the actual entire estate but the “advisors” drafted the will incorrectly due to their ignorance.
The “advisors” may have intended to write the words they put down but it does not record the testator’s intent to deal with his entire estate.
Osborne Clarke LLP