Your wish is not a will.
In estate planning, the language used in a will or a trust determines whether your intentions are legally binding or merely suggestions. Phrases like “I wish,” “It is my desire” may seem harmless, but in probate, they can completely undermine your plan. These are known as precatory words, and they can create confusion, trigger litigation, and ultimately disappoint your intended beneficiaries.
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.
What Is Precatory Language?
Precatory language refers to words of hope, desire, or supplication that are not enforceable under the law. The term comes from the Late Latin precatorius (or precātōrius), meaning “expressing a wish or prayer.”
In estate planning documents, courts often interpret precatory language as nonbinding, meaning:
- The executor is not required to follow it
- The beneficiary is not obligated to comply
- The provision may fail entirely during probate
While these phrases may reflect the testator’s intent, they often lack the clarity required to be enforceable.
Why Precatory Words Cause Problems in Probate
When a will includes precatory language, courts must determine whether the testator intended a legally binding command or merely a suggestion.
If the court has to interpret meaning based on context, prior precedent, and surrounding circumstances, the result is often:
- Increased litigation
- Delays in probate administration
- Conflicts among beneficiaries
- Outcomes that contradict the testator’s intent
In short, unclear language creates legal risk.
Precatory Trusts: A Common Estate Planning Mistake
A precatory trust occurs when a testator leaves property to someone but expresses a wish about how it should be used.
For example:
“I leave my real estate to my brother, with the wish that he hold it for his son.”
Courts often interpret this as:
- A full gift to the brother
- No enforceable obligation to benefit the son
Without clear trust language, the intended structure fails.
Real Examples of Precatory Language Failing
Courts have repeatedly held that precatory words are not enforceable, even when the intent seems obvious.
Example 1: Charitable Gift That Failed
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 that the language was precatory. As a result, the Texas Fine Arts Association did not get the property.
Example 2: Family Support Request Ignored
Another person left a holographic will that read, “after all bills are paid, I ask Charles to 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.
Example 3: Spouse Left Without Housing Rights
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.
Example 4: Conflicting Interpretations Within the Same Will
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.
How to Avoid Precatory Language in Estate Planning
The solution is simple: be clear, direct, and legally precise.
To ensure your wishes are enforceable:
- Use mandatory language (“shall,” “must,” “is directed to”)
- Clearly define the rights and obligations of beneficiaries
- Create formal trusts when needed
- Avoid ambiguous or emotional phrasing
- Work with an experienced estate planning attorney
If you intend to:
- Restrict how property is used → create a trust
- Allow someone to live in real estate → grant a life estate
- Direct distributions → use explicit, binding instructions
A properly drafted document removes uncertainty and reduces the risk of probate disputes.
Why Precision Matters in Legal Documents
Estate planning documents are not the place for casual language.
Unlike everyday communication, legal documents must:
- Follow established legal standards
- Align with probate law and precedent
- Clearly communicate enforceable intent
Even small wording choices can determine whether your estate plan succeeds — or fails.
Hammerle Morris Can Help With Your Estate Planning
Avoid costly mistakes caused by precatory language.
At Hammerle Morris, our attorneys help clients create clear, legally binding estate planning documents that protect their wishes and their beneficiaries.
Schedule a consultation to ensure your estate plan is enforceable and aligned with your goals.
Virginia Hammerle is a licensed Texas attorney whose practice includes estate planning, probate, guardianship, and litigation.
This article is for informational purposes only and does not constitute legal advice.
