Chapter 566: Powers of Appointment

A power of appointment, whether or not coupled with an interest, and whether or not existing at the time this section takes effect, and whether the power is held by the donee in an individual or in a fiduciary capacity, may be released, wholly or partially, by the donee thereof, unless otherwise expressly provided in the instrument creating the power. As used in this chapter, the term power of appointment includes all powers which are in substance and effect powers of appointment regardless of the language used in creating them and whether they are: (a) general, special, or otherwise; (b) in gross, appendant, simply collateral, in trust, or otherwise; (c) exercisable by will, deed, deed or will, or instrument amending a trust, or otherwise; (d) exercisable presently or in the future.

As a clarification of existing law, unless a testamentary power of appointment expressly states that it is a general power of appointment or expressly authorizes the donee to exercise the power of appointment in favor of one or more of the donee's creditors, the donee's estate or the creditors of the donee's estate, the power of appointment shall be construed as a special power of appointment, and the donee may not appoint in favor of the donee's creditors, the donee's estate or the creditors of the donee's estate. For the purposes of this section, the term "testamentary power of appointment" shall mean a power to appoint property exercisable only at the death of the donee of the power, whether by the donee's will or otherwise.

I. A power releasable according to RSA 566:1, or under common law, may be released, wholly or partially, by the delivery of a written release executed by the donee of the power for consideration or under seal to any person who could be adversely affected by the exercise of the power, or to any person who alone or with another or others holds in trust property subject to the power, or, in the case of a power created by will, by the filing of such release in the registry of probate in the county in which such will was proved or allowed.

II. No release of a power of appointment shall be valid as to land in this state subject to such power, except as against the releasor and persons having actual notice of the release, unless (a) in case of a power created by will or other written instrument, the release is acknowledged in the manner required in the case of deeds of land to entitle them to be recorded and is recorded in the registry of deeds for the county in which the land lies, or (b) in case of a power created by will, the release is filed in the registry of probate in the county in which such will was proved or allowed.

A release executed by the donee of a power releasable according to RSA 566:1, or under common law, and delivered or filed in accordance with RSA 566:2, I, shall, subject to RSA 566:2, II, be effective to release the power to the extent in such release provided, whether it in substance provides for the release of all right of the donee to exercise the power, or for the release of all right of the donee to exercise the power otherwise than in respect of a part, therein defined, of the property subject to the power, or for the release of all right of the donee to exercise the power otherwise than to or for the benefit of, in trust for, or in favor of a person or persons or class or classes of persons, therein specified, or an object or objects or class or classes of objects, therein defined.

If a power of appointment releasable according to RSA 566:1, or under common law, is or may be exercisable by two or more persons in conjunction with one another or successively, a release or disclaimer of the power, in whole or in part, executed, and delivered or filed, in accordance with RSA 566:2, I, by any one of the donees of the power, shall, subject to RSA 566:2, II, be effective to release or disclaim, to the extent therein provided, all right of such person to exercise or to participate in the exercise of the power, but, unless the instrument creating the power otherwise provides, shall not prevent or limit the exercise or participation in the exercise thereof by the other donee or donees thereof.

The word "release," as used in RSA 566:1-4, shall include (1) an instrument wherein the person who executes it in substance states that he wholly releases, or agrees in no respect to exercise or participate in the exercise of, a power of appointment, and (2) an instrument wherein the person who executes it in substance states that he releases all right to exercise or participate in the exercise of a power of appointment otherwise than within limits therein defined or agrees not to exercise or participate in the exercise of a power of appointment otherwise than within limits therein defined.

Release of a power of appointment otherwise releasable shall not be prevented merely by provisions in restraint of alienation or anticipation contained in the instrument creating the power.

RSA 566:1-6, shall so far as possible be deemed to be declaratory of the common law of this state. Said sections shall be liberally construed so as to effectuate the intent that all powers of appointment whatsoever shall be releasable unless otherwise expressly provided in the instrument creating the power.

A donee of a power of appointment may disclaim the same at any time, wholly or in part, in the same manner and to the same extent as he might release it.

Nothing in RSA 566:1-8, shall prevent the release in any lawful manner of any releasable power of appointment or the disclaimer in any lawful manner of any power of appointment.