Comparison of Uniform Trust Code, DC Trust Code, Maryland Trust Act, and Virginia Trust Code, with Annotations
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UTC §302 permits the holder of a general testamentary power of appointment to represent and bind persons whose interests, as permissible appointees or takers in default, are subject to the power, but only if there is no conflict of interest between the powerholder and the persons represented with respect to the particular question or dispute.
UTC §302 permits the holder of a general testamentary power of appointment to represent and bind persons whose interests, as permissible appointees or takers in default, are subject to the power, but only if there is no conflict of interest between the powerholder and the persons represented with respect to the particular question or dispute.
Both DC §19-1303.02 and MD §14.5-302 omit the conflict of interest proviso because the powerholder can act to include or exclude the permissible appointees or takers in default regardless of whether a conflict of interest exists; this omission renders irrelevant any concern about a conflict of interest. VA §64.2-715 retains the conflict of interest proviso.
N.B. DC §19-1303.02 confusingly provides that the “holder of a power of appointment” may represent and bind permissible appointees or takers in default. This statute then defines a “qualified power of appointment” in the same manner as MD §14.5-302(b), described above, but there is no other reference elsewhere in the statute (or in the entire DC UTC) to a “qualified power of appointment,” and so it is unclear from a literal reading of DC §19-1303.02 whether the statute applies to any powerholder or only one who has a general power of appointment (or a broad limited power of appointment).
UTC §302 permits the holder of a general testamentary power of appointment to represent and bind persons whose interests, as permissible appointees or takers in default, are subject to the power, but only if there is no conflict of interest between the powerholder and the persons represented with respect to the particular question or dispute.
Both DC §19-1303.02 and MD §14.5-302 omit the conflict of interest proviso because the powerholder can act to include or exclude the permissible appointees or takers in default regardless of whether a conflict of interest exists; this omission renders irrelevant any concern about a conflict of interest. VA §64.2-715 retains the conflict of interest proviso.
N.B. MD §14.5-302 permits the holder of a “qualified power of appointment” to represent and bind permissible appointees or takers in default. The term “qualified power of appointment” is defined in MD §14.5-302(b) as either a general power of appointment or a power of appointment exercisable in favor of all persons other than the powerholder, his estate, his creditors, and creditors of his estate.
To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
DC
§ 19-1303.02. Representation by holder of general testamentary power of appointment.
[MISSING "TO THE EXTENT THERE IS NO CONFLICT OF INTEREST . . . QUESTION OR DISPUTE"] The holder of a power of appointment may represent and bind persons whose interests as permissible appointees or takers in default [MISSING "OR OTHERWISE"] are subject to the power. A qualified power of appointment is a power exercisable in favor of:
(1) The power holder, the power holder's estate, the power holder's creditors and the creditors of the power holder's estate; or
(2) All persons other than the power holder, the power holder's estate, the power holder's creditors, and the creditors of the power holder's estate.
[MISSING "TO THE EXTENT THERE IS NO CONFLICT OF INTEREST . . . QUESTION OR DISPUTE"] (a) The holder of a qualified power of appointment may represent and bind persons whose interests as permissible appointees or takers in default [MISSING "OR OTHERWISE"] are subject to the power. (b) A qualified power of appointment is:
(1) A general power of appointment; or
(2) A power of appointment exercisable in favor of all persons other than the power holder, the estate of the power holder, the creditors of the power holder, and the creditors of the estate of the power holder.
VA
§ 64.2-715. Representation by holder of general testamentary power of appointment
To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.