Virginia Law

Article 4. Disclaimer or Release; Contract to Appoint or Not to Appoint.

As provided by Chapter 26 (§ 64.2-2600 et seq.):

1. A powerholder may disclaim all or part of a power of appointment.

2. A permissible appointee, appointee, or taker in default of appointment may disclaim all or part of an interest in appointive property.

2016, c. 266.

A powerholder may release a power of appointment, in whole or in part, except to the extent that the terms of the instrument creating the power prevent the release.

2016, c. 266.

A powerholder of a releasable power of appointment may release the power in whole or in part:

1. By substantial compliance with a method provided in the terms of the instrument creating the power; or

2. If the terms of the instrument creating the power do not provide a method or the method provided in the terms of the instrument is not expressly made exclusive, by a record manifesting the powerholder's intent by clear and convincing evidence.

2016, c. 266.

A. A fiduciary or other person, association, or corporation having possession or control of any appointive property, other than the powerholder, shall not be deemed to have notice of a release of the power of appointment until the original or a copy of the release is delivered to such fiduciary or other person, association, or corporation.

B. A purchaser or mortgagee of any real property subject to a power of appointment, without actual notice of the release, shall not be deemed to have notice of a release of power until (i) the original or a copy of the release is recorded in the circuit court clerk's office in the county or city in which the real property is located, referencing the will or deed book where the instrument creating the power is recorded, and (ii) the deed, will, or other instrument creating the power of appointment, or a certified copy thereof, is recorded in the same clerk's office.

C. No release shall be invalid or ineffective for failing to comply with subsection A or B.

D. The clerk shall record a release of a power of appointment in the deed book and index the release in the daily and general indexes with the name of the powerholder being entered on the grantor index. For each such recordation, the clerk shall be paid a fee in the amount applicable to the recordation of deeds as set forth in subdivision A 2 of § 17.1-275 and an additional fee of $5.

2016, c. 266.

A powerholder may revoke or amend a release of a power of appointment only to the extent that:

1. The instrument of release is revocable by the powerholder; or

2. The powerholder reserves a power of revocation or amendment in the instrument of release.

2016, c. 266.

A powerholder of a presently exercisable power of appointment may contract:

1. Not to exercise the power; or

2. To exercise the power if the contract when made does not confer a benefit on an impermissible appointee.

2016, c. 266.

A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if the powerholder:

1. Is also the donor of the power; and

2. Has reserved the power in a revocable trust.

2016, c. 266.

The remedy for a powerholder's breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.

2016, c. 266.