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"This form, which is in the record, did not have space to include a residuary clause or preprinted language that would allow a testator to elect to use such a clause," Pariente wrote.
For example, suppose that [section]2.5 of the particular revocable trust is the residuary clause, and provides as follows:
(1) Some neglect to include an elastic residuary clause in their wills.
(82) Even if a testator dies partially intestate because she set out no residuary clause to begin with, this fact suggests that she failed to foresee the value of the estate, part of which the testator may have acquired after the will was executed.
A residuary clause or other provision in the donee's will or revocable trust that does not manifest an intent by the donee to exercise a power of appointment shall not be deemed to manifest an intention to exercise any of the donee's power(s) of appointment.
In some states, a residuary clause automatically exercises a general power of appointment, unless the trust requires that it must be specifically referred to in order to make a valid exercise or unless the will itself states that no exercise is intended.
If the testator included a residuary clause in the will, the residuary beneficiary receives all bequests that lapse, unless the will provides otherwise.
Because of the possibility of confusion and the unintended exercise of a power by the residuary clause in the will of a donee of a power which is exercisable by will, many draftsmen require that the power be exercised by "an instrument other than a will." In this fashion, the donee cannot, intentionally or unintentionally, exercise the power by a will, but instead, must use a separate document.
An alternative would be to include a contingency or catch-all provision that applies to the extent property is not effectively disposed of by the residuary clause or the provisions of a testamentary trust, such as a provision for a distribution to the persons who would be the testator's heirs under the laws of intestacy, with certain modifications.
The court held that Florence had a transmissible future interest regarding half of her father's residuary estate, which passed under her residuary clause in trust for her husband.