Precatory Language

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PRECATORY LANGUAGE

Words in a will or a trust used by the testator (the person making the will) or settlor (the person making a trust) to express a wish or desire to have his or her property disposed of in a certain way or to have some other task undertaken, which do not necessarily impose a mandatory obligation upon anyone to carry out the wish.

Precatory language in a will or trust usually includes such terms as the testator's "request," "hope," or "desire" that property be given to a certain person or be disposed of in a particular manner. Whether such language can be viewed as mandatory, thus creating an enforceable will or trust, or whether it merely expresses the testator's wish to have something done has been a difficult issue for the courts. The court must look to the intent of the testator to determine whether the precatory language establishes an enforceable agreement.

The court usually examines a number of factors, including other language used in the will or trust, to determine the testator's intent. For example, if in her will Anne says only that she "wishes" or "would like" her house to be sold to her cousin Bill on her death, the court may find the language to be precatory and thus unenforceable because Anne was merely expressing a wish or a recommendation. But if elsewhere in the will a definite selling price is indicated, the court may conclude that Anne, despite the precatory terms used, did intend for her cousin to be offered the house because she took the additional step of specifying the price for which the property was to be disposed of at her death.

In addition to examining other language in the will or trust for clues to the testator's intent, the court may look to the relationship of the parties involved. For instance, if Tom puts language in a trust "requesting" that his daughter receive money or a particular gift, a judge may be more apt to enforce the trust. In doing so, the court acts on the assumption that Tom and his daughter share a close personal relationship and that he would want her to be provided for following his death even if he was less than definite in the language he used in the trust.

Furthermore, language in a will or trust making a gift to charity may sometimes be upheld even if it appears to be precatory. For example, if Sue states in her will that she "would like" some of her money to be used for a particular program at a university, a court may view her language as mandatory. When a charitable organization is involved, courts, as a policy matter, tend to construe language liberally to make the gift effective.

The litigation that often results from precatory language in wills and trusts can be avoided by the careful use of clear and definite language that leaves no doubt as to how the testator wishes to dispose of her or his property. Seeking legal advice when drafting a will or trust may be the best way to prevent litigation.