Frank Schiavo has made available for download his 2006 article, “Does the Use of ‘Request,’ ‘Wish,’ or ‘Desire’ Create a Precatory Trust or Not?” The Abstract is as follows:
Courts continue to remind us that an implied (precatory) trust will be created: “First, if the words are so used, that upon the whole, they ought to be construed as imperative; Secondly, if the subject of the recommendation or wish be certain; and, Thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain.” The first factor has been redefined over the centuries, from mandatory, per se, to the modern trend of determining the settlor’s intention based on all the facts and circumstances. The cases illustrate the complexities of determining the settlor’s intent when precatory expressions are used. In the early years, the courts were not interpreting intent in accordance with its “plain language” and gave the precatory words mandatory meaning. It would clearly not be appropriate to go in the opposite direction by always giving precatory words their plain meaning. After all, the settlor’s intent is the hallmark of a trust.
This article provides a historical overview of the different treatment given to precatory language by different jurisdictions. Precatory words convey a recommendation, as opposed to a positive command, and the article details how a recommendation in the context of settlor’s intent imposes an obligation in some jurisdictions and not in others. It’s concluded from this overview that no bright line test exists to determine a settlor’s intent that is conveyed by precatory language. Precatory words are what the law characterizes as words that convey a recommendation rather than a positive command or direction. We often see them used in wills to express a settlor’s intent to create a trust, sometimes interpreted to impose an obligation on those to whom they are directed — and sometimes not.
This article includes a history of courts’ interpretations of those expressions and asks whether there is any bright line test in analyzing the settlor’s intent to create a trust when precatory words or expressions are used. After the introduction, Part II of this article gives a background into the words usage. Part III gives readers a definition of precatory language. Then, Part IV presents the history of early settler’s use of precatory words. Part V shows a transition of how they have become a modern trend. Part VI shows other aspects, while Part VII presents the negative precatory words. Finally, Part VIII summarizes everything in the conclusion.
Download full article at: Does the Use of ‘Request,’ ‘Wish,’ or ‘Desire’ Create a Precatory Trust or Not? by Frank Schiavo :: SSRN
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.