N.C. Gen. Stat. § 31D-3-306

History

(2015-205, s. 3(a).)

NORTH CAROLINA COMMENT

The drafters omitted the opening clause of subsection (a) of the Uniform Powers of Appointment Act providing that "[Subject to [refer to the state law on anti-lapse]", an appointment to a deceased appointee is ineffective. This clause was omitted because the North Carolina anti-lapse statute, G.S. 31-42, does not expressly extend anti-lapse protection to appointees and the drafters did not think it was appropriate to permit an appointment to a descendant of a deceased appointee where the descendant was not described by the donor as a permissible appointee.

For these reasons, the drafters also omitted the provisions of subsection (b) of the Uniform Powers of Appointment Act which the Uniform Law Commissioners in the Official Comment to this section said was "a logical extension of the application of anti-lapse statutes to appointments." Subsection (b) provided that unless the terms of the instrument creating the power manifest a contrary intent, the power of appointment of a nongeneral power may be exercised in favor of, or to create a new power of appointment in, a descendent of a deceased permissible appointee whether or not the descendant is described by the donor as a permissible appointee.

Because of the modifications made in this section of the Uniform Powers of Appointment Act, the Official Comment was deleted, except for the following comment which applies to this section:

Just as property cannot be transferred to an individual who is deceased (see Restatement Third of Property: Wills and Other Donative Transfers § 1.2), a power of appointment cannot be effectively exercised in favor of a deceased appointee.