Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint, and the will does not provide for the event of no appointment being made; if the power given by the will is not exercised, the property belongs to all the objects of the power in equal shares.
Illustration
A, by his will bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.
Legal Commentary & Landmark Judgments: Section 92
Section 92 provides that where a power of appointment among a specified class is given without a gift over in default, the court implies a gift in equal shares to the members of that class if the power is not exercised.
If the donee of the power dies without executing the appointment, the court will not allow the property to fall into intestacy or lapse; instead, Section 92 implies a direct gift in equal shares to all members of the designated class who survive, effectuating the primary purpose of the testator.
Section 92 prevents trust assets from lapsing when a surviving spouse or trustee fails to exercise an appointment power before passing away. Counsel representing class members can immediately demand equal partition of the underlying property under Section 92 without needing to prove an appointment.