Statutory Formalities Must Be Followed To Exercise Valid Power of Appointment in Last Will and Testament

Collins v. Hearty Investment Trust, 9th Dist. Case No. 27964, 2017-Ohio-1270. A last will and testament containing a power of appointment must be exercised in compliance with the required statutory formalities for the power of appointment to be valid. The trust in this matter provided that the grantor could appoint his trust share by last will and testament as long as the testamentary document made specific reference to the limited power of appointment.  The decedent signed a codicil transferring his trust to his wife pursuant to the amended power of appointment provision, but the codicil was not signed before two witnesses as R.C. § 2107.03 requires. The trial court determined that the decedent intended to exercise his power of appointment in favor of his widow.  The 9th district, however, disagreed because the trial court could not disregard R.C. § 2107.03’s attestation requirement and validate a codicil based upon the testator’s intent without the required two witnesses. Because the purported codicil was not validly executed under Ohio law, the appellate court held that the exercise of the power of appointment was invalid as well.