This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
If the appointor exercises the power in the wrong manner, the appointment is void. But the Court of Chancery will give effect to the appointment if -
(1) The defect is merely formal, and
(2) The appointment was exercised in favour of the wife, childs or creditor of the appointor, a charity or a purchaser (j).
Toilet v. Toilet (1728), 2 P. Wms. 489. ' T had a power to appoint property by deed. He appointed it by will in favour of his wife.
Held, the appointment can be enforced.
But a power to appoint by will cannot be remedied if it is exercised by deed, for the grantor of the power intended it to be exercised by an instrument which should be revocable until the death of the appointor, and not by an irrevocable document such as a deed (k).
(i) See the explanation of this case in Henty v. Wrey, (1882) 21 Ch. D. 332, where a father bona fide appointed a fund to his three daughters aged nine, seven, and one. And two of the daughters happened to die under 21. The appointment was held good.
(j) Provided, of course, that such persons are proper objects of the power.
(k) Adney v. Field, (1707) Amb. 654.