Is Precatory Language in Trusts Enforceable?

Frank L Schiavo (Associate Professor of Law, Barry University Dwayne O. Andreas School of Law) has published his article entitled Does the Use of “Request,” “Wish,” or “Desire” Create a Precatory Trust or Not?, 40 Real Prop. Prob. & Tr. J. 647 (2006).

Here is the introduction to his article:

“Starlight, starbright, first star I see tonight, I wish I may, I wish I might, have the wish I wish tonight.” How many times have we heard or used that childhood refrain during our lifetime? We use these words even though we know that wishing won't make things come true. Those wish words are what the law characterizes as precatory words--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 the 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.