Your wish is not a will.
If you use the phrase “I wish” in a will or a trust, there is a strong likelihood that provision will not be enforceable. In the world of lawyers, phrases like “I wish” or “It is my desire” are known as “precatory.” A precatory provision is considered a nonbinding suggestion and can be ignored.
If your will contains words like “want,” “wish,” “desire,” or “like,” the court will have to look at the other provisions in your will and the surrounding circumstances to determine whether you intended the provision to be precatory or mandatory. If a court must delve that deeply into the document to determine your meaning, the only certain outcome is that someone is going to be disappointed.
How Context Can Affect Precatory Language Outcomes
One man put in his handwritten (holographic) will a provision that said, “I would like our home…to be given to the Texas Fine Arts Association for a small museum.” The Court, after noting that the man had been a renowned genre painter but was not an attorney, held the language was precatory. As a result, the Texas Fine Arts Association did not get the property.
Another person left a holographic will that read, “after all bills are paid I ask Charles help Truitt Jr. in any way he needs.” That provision was held to be precatory. As a result, Charles was not required under the will to help Truitt Jr. in any way.
A 1953 case concerned a will that left everything to the sons, followed by a “request” that the wife be allowed to live in the house “as long as she may live, or desires to live in it.” That, too, was considered precatory, meaning the wife had no right, under the will, to live in the house.
Sometimes similar phrases have led to differing constructions, even when they occur within the same will. In a 1948 decision, a court held that the phrase “will and desire” was precatory in one provision, but that another provision stating “will and wish” was mandatory and enforceable. The court drew its conclusions by looking at the context of each phrase.
One person left in his will some property to his brother, but followed that bequest with this language, “it being my wish however for my beloved brother to keep the property for his son Elvin.” The “wish” was held precatory.
An 1899 case involved a will where the man bequeathed his estate to his wife and then stated “to have and to hold in her own use and benefit until my heirs become of age, and for her to divide equally the amount due to each that she, in her judgment, shall be entitled to.” The court held that the language was merely a request and therefore precatory. The wife had no obligation to divide the property for the heirs.
Precatory language is a common problem in bequests to charities. In a 1939 case, a wife wrote in her will “it is my desire and request” that property left outright to her husband “shall ultimately pass to and vest in” a church. The court found the bequest was precatory, and that the husband was not obligated to preserve the property for the church.
How to Avoid Using Precatory Language
You can easily avoid the precatory trap. Hire a lawyer to write your will. Give clear instructions. If you want property held in trust, then create a trust. If you want to give only a life estate in property, then state it. A wish is not a command.
Hammerle Finley Can Help With Your Estate Planning Needs
If you’re looking for estate planning assistance, schedule a consultation with an attorney at Hammerle Finley to discuss what is right for you.
Virginia Hammerle is an attorney with Hammerle Finley Law Firm. She is entering her 40th year in the practice of law. She is Board Certified in Civil Trial Law by the Texas Board of Legal specialization. Contact legaltalktexas@hammerle.com to receive her firm’s newsletter.
