Montana Code 72-7-302. Intent to exercise — determining intent from residuary clause
72-7-302. Intent to exercise — determining intent from residuary clause. (1) In this section:
Terms Used In Montana Code 72-7-302
- Blanket-exercise clause: means a clause in an instrument that exercises a power of appointment and is not a specific-exercise clause. See Montana Code 72-7-102
- Codicil: An addition, change, or supplement to a will executed with the same formalities required for the will itself.
- Gift-in-default clause: means a clause identifying a taker in default of appointment. See Montana Code 72-7-102
- Instrument: means a writing. See Montana Code 72-7-102
- Power of appointment: means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. See Montana Code 72-7-102
- Powerholder: means a person in whom a donor creates a power of appointment. See Montana Code 72-7-102
- Revocable trust: A trust agreement that can be canceled, rescinded, revoked, or repealed by the grantor (person who establishes the trust).
- Specific-exercise clause: means a clause in an instrument that specifically refers to and exercises a particular power of appointment. See Montana Code 72-7-102
- Terms of the instrument: means the manifestation of the intent of the maker of the instrument regarding the instrument's provisions as expressed in the instrument or as may be established by other evidence that would be admissible in a legal proceeding. See Montana Code 72-7-102
(a)”Residuary clause” does not include a residuary clause containing a blanket-exercise clause or a specific-exercise clause.
(b)”Will” includes a codicil and a testamentary instrument that revises another will.
(2)A residuary clause in a powerholder‘s will or a comparable clause in the powerholder’s revocable trust manifests the powerholder’s intent to exercise a power of appointment only if:
(a)the terms of the instrument containing the residuary clause do not manifest a contrary intent;
(b)the power is a general power exercisable in favor of the powerholder’s estate;
(c)there is no gift-in-default clause or the clause is ineffective; and
(d)the powerholder did not release the power.