Definition
A precatory trust is a trust purportedly created not by direct command or clear imperative language, but by words of wish, hope, desire, or entreaty — expressions that request rather than direct. The doctrine holds that when a testator or settlor uses precatory language in a will or instrument (phrases such as "I wish," "I request," "I desire," "I have fullest confidence," or "I heartily beseech"), a court may nonetheless find that a binding trust was created if the intent to impose a legal obligation is sufficiently clear from the instrument as a whole.
The central tension is this: precatory language, on its face, looks like a moral appeal, not a legal command. Courts must determine whether the words impose a duty enforceable in equity — an express trust — or merely express the testator's hope, leaving the recipient free to comply or not.
---
Common Language
Modern common usage (Wiktionary): "Precatory" derives from the Latin precari, to pray or entreat. In ordinary usage, precatory means of, relating to, or expressing a prayer or entreaty. The word is not in common everyday use.
Historical common usage (Webster's 1913): Webster's 1913 defines "precatory" as "suppliant; beseeching." It gives the example of "precatory words" in wills.
The word sits almost exclusively in legal and theological vocabulary, so the gap between common and legal meaning is less about divergence than about the legal doctrine layered onto the simple meaning of entreaty. The legal significance is that courts do not treat all entreaties equally — the question is whether an entreaty in a legal instrument crosses into enforceable obligation.
---
Common Confusion
Precatory trust is frequently confused with a fully formed express trust. The distinction matters: an express trust is created by clear, imperative language imposing a legal duty; a precatory trust is the contested category where courts must decide whether softer language does the same work. When courts decline to enforce precatory language as a trust, the property typically passes absolutely to the named recipient, who holds it beneficially for themselves — or a resulting trust in favor of the residuary estate or heirs may arise.
Do not confuse precatory trust with resulting trust. A resulting trust arises by operation of law from circumstances, not from the instrument's language. If a precatory trust fails, a resulting trust may arise as a consequence — but the two doctrines are analytically separate.
---
Core Elements
Courts evaluating whether precatory language creates an enforceable trust generally look to three questions:
1. Subject matter certainty: Is the property subject to the alleged trust identified with sufficient certainty?
2. Object certainty: Are the intended beneficiaries ascertainable?
3. Intent to impose obligation: Does the precatory language, read in context of the whole instrument, show that the testator or settlor intended to impose a legal duty on the recipient, not merely express a wish?
The third element is the diagnostic one. Modern courts are skeptical of finding a trust in precatory language alone and require the instrument to show — through surrounding context, specific identification of beneficiaries, or the relationship between the parties — that a binding obligation was genuinely intended.
---
Why It Matters in Research
The doctrine of precatory trust is primarily a doctrine of wills construction and has migrated substantially into trust drafting as a cautionary example. Researchers working with historical wills and trust instruments need to understand that the threshold for enforcing precatory language has shifted markedly over time.
Nineteenth-century equity courts were considerably more willing to find trusts in soft language. The trajectory of the doctrine through the late nineteenth and into the twentieth century is one of increasing judicial reluctance — courts became wary of defeating testamentary intent by over-reading expressions of hope as commands. Both Black's Law Dictionary and Rapalje & Lawrence reflect an intermediate moment in this evolution: they acknowledge that courts have found trusts in such language while noting the growing judicial caution.
Researchers reading older wills cases will encounter the phrase "words of entreaty" used as a term of art. These cases often turn on fine distinctions in language — "I wish" treated differently from "it is my will that" — and the outcomes can seem inconsistent across jurisdictions and eras. Do not assume that a case finding a precatory trust from particular words generalizes to later cases or other jurisdictions.
In modern practice, careful drafters avoid precatory language entirely when they intend to create a binding trust obligation. Conversely, when a testator genuinely intends only to express a wish without imposing a duty — such as expressing hope that a legatee will maintain a family home — counsel may deliberately use precatory language. Disputes arise when drafting is imprecise.
The doctrine also intersects with the law of resulting trusts. When a court refuses to enforce alleged precatory language as a trust, the property passes outright to the named recipient. If that recipient holds property that was arguably intended for others, a resulting trust analysis may follow. See estates_67.
---
Historical Dictionary Support
Rapalje & Lawrence and Black's Law Dictionary are in close agreement on the core definition. Both identify the key marker — words "more like words of entreaty and permission than of command or certainty" — and both use the same illustrative examples: "wish and request," "have fullest confidence," "heartily beseech."
The more informative passage is Rapalje & Lawrence's note that "at the present day, the courts are not disposed (except under exceptional circumstances) to enlarge the number" of words recognized as sufficient. This editorial observation, written in the late nineteenth century, signals that the doctrine was already contracting. Black's, by contrast, simply states the rule without flagging the trend. Neither source fully captures how dramatically modern courts have tightened the standard — researchers relying solely on these historical entries may underestimate how skeptically contemporary courts approach precatory language.
Neither source addresses the interaction with resulting trusts when precatory language fails, a gap researchers should account for by consulting treatises on express and resulting trusts alongside the dictionary entries.
---
Jurisdictional Note
The basic doctrine is recognized across common law jurisdictions, but the threshold for finding a trust in precatory language varies. English courts, where the doctrine originated, underwent a major retrenchment in the nineteenth century. American courts generally follow the modern restrictive approach but outcomes in specific cases remain sensitive to the exact language used and the jurisdiction's willingness to look to extrinsic evidence of intent.
---
Encyclopedia Cross-Reference
Resulting Trusts — Purchase-Money and Failure-of-Express-Trust Resulting Trusts (estates_67): Relevant when precatory language fails and a resulting trust may arise by operation of law.
Trust Protectors and Dispute Resolution Mechanisms in Trust Instruments (estates_109): Relevant to modern drafting context and mechanisms for resolving ambiguity in trust instruments.
---