Precatory Language

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.

Further readings

McElwee, L.A. 1992. "Precatory Language in Wills: Mere Utterances of the Sibyl?" Probate Law Journal 11.

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References in periodicals archive ?
In construing a will, courts are often challenged with interpreting whether certain words or clauses constitute mandatory or precatory language.
22) The background will conclude with a discussion on precatory language.
The dissent explained that precatory language is not always determined by viewing a single word or phrase in isolation.
71) This background concludes with an examination of precatory language and the permissive nature of the word "wish" in the context of wills.
Precatory language are "words of entreaty, request, wish or recommendation" addressed to a donee under a will.
163) The proposed IAEA treaty or convention must discard precatory language such as "strongly encourage" or "upon request," and replace it with "shall" in order to convey unambiguous regulatory mandates.
In December 2012, the IAEA will hold a ministerial conference on nuclear safety in Fukushima, Japan, and at that time, the representatives of the Member States should discard the precatory language of the IAEA Draft Action Plan, determine precise regulatory goals, and create an in dependent international regulatory body to oversee all plants worldwide under the proposed Fukushima Convention.
See supra notes 25, 27 (discussing policies implemented by TEPCO which led to increased damage or delayed response); supra note 47 (discussing JCO's implementation of policies in direct violation of national regulations); supra note 47 and accompanying text (noting precatory language of IAEA Action Plan).
See supra notes 88, 90 (noting precatory language of Draft Action Plan).
This precatory language has been deleted from the rule as an unnecessary statement.
97, 120-21 (1988) (explaining that current state laws inhibit shareholder proposals because most proposals are drafted in precatory language to avoid the "proper subject" restriction).
AICPA's precatory language in its Memorandum of Understanding with NASBA that its quality review program may be fully accepted by boards of accountancy which have or may in the future have a positive enforcement program is another plank in AICPA's goal to unify the profession.