We’ve probably all heard, at one time or another, the phrase “If wishes were fishes, we’d all swim in riches.” The phrase, distilled to its Scottish essence, means wishing for something doesn’t make it so – you have to work for it.
So, how does this apply to wills and trusts?
We start with an initial inquiry – Did the will or trust maker express whether the estate or trust assets were to be distributed outright and free of trust? Or, whether the will or trust maker intended to impose enforceable duties as to the distribution of the properties in question.
We search the document to see whether the maker’s words are merely those of desire rather than those of command. In the words of the law, is the maker using precatory words rather than mandatory words. Shall is a command. So, is direct. Both are mandatory words.
Wish, like desire–is not a command. Want and recommend may express the will or trust maker’s desires, but no imperative duty is imposed. Hope is the same. It doesn’t impose a legal duty. Such words are so indefinite that courts find it difficult to impose a duty on an executor or trustee.
The Irish also have a way with words. A little over one hundred years ago an Irish Court identified a trend that is still in place. “When we come to consider the innumerable decisions in which … Courts …have displayed their benevolent astuteness in imposing an obligatory meaning upon words merely expressive of desire, the mind is reduced to a condition of perplexity and confusion …”
So, if a Court is perplexed, it is little surprise that we to can find will and trust language occasionally perplexing. Just to avoid the headache, I wish that trust language could be clearer. And it is both my desire and my hope that the trend toward clarity of purpose continues. In the case of what we term precatory language, we can infer “that the transferor intend[ed] to leave it to the transferee to decide whether or not to follow the suggestion.”
At Hackard Law we take significant trust and estate cases where we think that we can make a substantial difference and there is a party who can be made financially responsible for a wrongdoing or breach of duty.
We focus our geographic practice in the Superior Courts, civil and probate, in California’s largest urban areas including Orange, Los Angeles, Santa Clara, San Mateo, Alameda, Contra Costa and Sacramento Counties.
If you would like to speak with us at Hackard Law about some perplexing trust language, you can call us at 916-313-3030. We’ll be glad to see how we can help you.