Legal Definitions - precatory

The term precatory refers to language that expresses a wish, hope, recommendation, or desire, rather than a direct command or requirement. In a legal context, particularly within documents like wills or trusts, precatory language is generally considered non-binding and does not create a legally enforceable obligation.

It contrasts with "mandatory" language, which uses words like "must," "shall," or "will" to impose a clear and enforceable duty. Precatory words often include phrases such as "I wish," "I hope," "I desire," "it is my request," or "I recommend."

Here are some examples to illustrate the concept of precatory language:

• Example 1: A Will's Suggestion for Inheritance Use

  Imagine a will that states: "I leave my entire estate to my daughter, Sarah. It is my earnest hope that she will use a portion of these funds to establish a scholarship in my name at my alma mater."

  In this scenario, the phrase "it is my earnest hope" is precatory. While the testator clearly expresses a strong desire for Sarah to create a scholarship, this language does not legally compel her to do so. Sarah receives the inheritance outright and is not legally bound to use any part of it for the scholarship. If the testator had wanted to ensure the scholarship was established, they would have needed to use mandatory language, such as "I direct that Sarah shall use..." or "I bequeath X amount to be held in trust for the purpose of establishing..."

• Example 2: A Trust's Guidance for Investment Decisions

  Consider a trust document that instructs a trustee: "The trustee should consider investing a significant portion of the trust assets in environmentally sustainable companies, provided such investments align with sound financial principles."

  The phrase "should consider investing" is precatory. It offers guidance and expresses the trust creator's preference, but it does not impose a strict legal duty on the trustee to invest exclusively or even primarily in environmentally sustainable companies. The trustee is given discretion to make investment decisions based on sound financial principles, and they are not legally obligated to prioritize the suggested investment type if it conflicts with their fiduciary duties or the overall financial health of the trust. If the creator wanted to mandate such investments, they would have used stronger, mandatory language.