The commonplace belief is that a will dictates exactly what must be done with a deceased person’s assets. But it’s a bit more complicated than that. And sometimes it can be difficult to distinguish between a command and a suggestion.
Unless you practice law for a living, you are unlikely to have ever come across the word "precatory." It refers to words that express a desire, without imposing an affirmative duty. Thus, precatory language in a will is a recommendation to the executor.
Examples of Precatory Language
Here's an example pulled from an old case here in New York: "It is my wish and desire that my said wife shall pay the sum of three hundred dollars a year to my sister-in-law Miss Nellie Post." Another example would be: "It is my hope that my executor will make sure that my cousin Bob is allowed to reside in my home for at least 10 years after my death."
Distinguishing Between Duty and Suggestion
It's obviously best to have an attorney review the will (and handle the probate), but if you want to distinguish between the executor's duties and mere recommendations, look for such words as hope, wish, desire, expect, anticipate, recommend, suggest, propose, advise, request, and urge, or forms of those words. This is not a complete list, and context will be crucial.
The Meaning of Words
The governing principle in interpreting a will is determining the intent of the person who made the will (the "testator"). New York's top court, the Court of Appeals, emphasizes that in determining the testator's intent, words "are to be given their ordinary and natural meaning."
Absence of Command
As was stated by a New York court more than half a century ago, a will that sought to "request" that the executor should distribute estate assets in accordance with instructions given to him during the testator's lifetime "has no words of command, obligation or condition." It was thus determined to be "purely precatory."
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