Classification of Powers of Appointment

Several Subcategories of Power

Though all powers of appointment share their discretionary character, several subcategories of power can be identified, which are identified by the nature of the class of potential objects and by the exact duties of the donee.

Classification by the nature of the class of objects

There are three types of powers of appointment: general, special and hybrid powers. They are differentiated by the range of potential objects in whose favour the power may be exercised:

  • General Powers

Under a general power of appointment the donee enjoys the right to allocate the property by appointment to anyone he wishes. The donee may even appoint the property to himself. This extremely wide power is tantamount to absolute ownership by the donee.

  • Special Powers

Where the donor of a power has specified that it should only be exercised in favour of a class of people, it is said to be a special power. The donee has absolute discretion whether to make any appointments of the property but any appointments made must be to persons within the specified class. InRe Weekes’ Settlement [1897] 1 Ch 289, Mrs Slade granted a life interest of her estate to her husband and gave him a power of appointment over the reversionary interest in favour of their children. This created a special power in favour of the class of their eight surviving children. Mr. Slade had discretion whether to make appointments at all, but he could only make appointments to those who fell within the class of potential objects. Similarly inRe Gestetner Settlement [1953] Ch 672, a power of appointment was granted by Sigmund Gestetner in favour of a class including four named persons, the descendants of his father and uncle, five charitable bodies and the employees or former employees of Gestetner Ltd. In Re Sayer [1957] Ch 423, a power was granted in favour of the employees, ex-employees and their widows and infant children of Sayers Confectioners Ltd.

  • Hybrid Powers

A hybrid or immediate power is the inverse of a special power. The donee is entitled to make appointments in favour of anyone except the members of a specified class. In Re Byron’s Settlement [1891] 3 Ch 474, a power of appointment was given by the testatrix to her daughter in favour of anyone except ‘her present husband or any friend or relative of his.’ In Re Lawrence’s Will Trust [1972] Ch 418, Mr Lawrence granted his wife a power of appointment over his residuary estate in favour of anyone except her relatives. 

Classification by donee’s duties

Powers may also be divided into those where the donee owes no duty of a fiduciary nature to the potential objects of the power, and those where some fiduciary duties are owed. Although in both cases the power remains essentially discretionary, there is a slight difference in the duties owed.

Bare or mere powers

If the donee of the power does not hold the power in a fiduciary capacity, then he owes no duties to the objects concerning its exercise. He is under no duty to exercise it, and need not even consider whether he should exercise the power. He can completely forget that he has it, and never apply his mind to the question whether he should exercise it. This type of power is known as a bare or mere power. 

Fiduciary powers

If the donee holds the power of appointment in a fiduciary capacity, most commonly because it is a power which arises under a trust of which he is the trustee, then he owes limited fiduciary duties to the potential objects of the powers. He must periodically consider whether to exercise the power, although it remains entirely discretionary and he is under no enforceable obligation to make appointments. If he does decide to exercise the power, he must first survey the range of potential objects before making particular appointments