Definition
In testamentary law, "wish and request" is a precatory phrase — a form of words used in a will that expresses the testator's desire or hope rather than a direct command. When a testator writes that he "wishes" or "requests" a beneficiary to do something with property, the question for courts is whether those words impose a legally binding trust obligation or merely express a personal preference with no enforceable effect.
The phrase occupies contested ground between outright gift and trust. A trust requires three certainties: certainty of intention, certainty of subject matter, and certainty of object. Courts have held that "wish and request," when the subject matter (the property) and the object (the intended beneficiary of the wish) are sufficiently identified, can satisfy the certainty of intention requirement and give rise to an enforceable trust — even though the language sounds more like a suggestion than a command.
Common Language
Modern common usage (Wiktionary): "Wish" — a desire or hope for something. "Request" — a polite or formal asking for something. Neither word in ordinary use implies obligation or legal compulsion.
Historical common usage (Webster's 1913): "Wish" — to desire; to long for; to want. "Request" — an asking for a favor or thing; an expression of desire addressed to another.
The gap between common and legal meaning is significant. In everyday English, wishing and requesting are expressly non-binding — they invite but do not compel. In testamentary law, courts have nonetheless treated these words as capable of creating an enforceable trust, provided the surrounding context supplies sufficient certainty. A researcher encountering these words in a will cannot treat them as mere sentiment without first analyzing whether a court would impose trust obligations on the recipient.
Common Confusion
WISH AND REQUEST vs. DIRECTION AND COMMAND: The classic distinction in trust law is between precatory words (wish, desire, hope, request, recommend) and imperative words (direct, command, require, shall). Historically, courts were more willing to enforce precatory language as trusts; the modern trend has moved toward requiring clearer imperative language before imposing trust obligations. A researcher must identify the period and jurisdiction of the will in question, because the same phrase may have been enforced as a trust in an 1880 Kentucky case and treated as a mere expression of hope in a modern court.
PRECATORY TRUST vs. RESULTING TRUST: Where precatory language fails to create an express trust, courts may still find a resulting trust in favor of the residuary estate or the testator's heirs. These are distinct doctrines that require separate analysis.
Core Elements
For "wish and request" language to raise an enforceable trust, courts applying the traditional rule examine:
1. Certainty of Intention: The precatory words must show, in context, that the testator intended to impose an obligation — not merely express a hope. "Wish and request" can satisfy this, but the surrounding language of the will matters.
2. Certainty of Subject Matter: The property to which the wish and request attaches must be identifiable. Vague references to "some of my estate" will defeat trust formation regardless of how strong the precatory language appears.
3. Certainty of Object: The person or class intended to benefit from the wish and request must be ascertainable. An unidentifiable or insufficiently defined beneficiary class prevents trust enforcement.
Why It Matters in Research
Researchers working with historical wills — particularly nineteenth-century American and English documents — will encounter precatory language with surprising frequency. The phrase "wish and request" is a canonical example of language that generated significant litigation over whether testators had created trusts or had simply gifted property outright with an unenforceable moral appeal attached.
The trajectory of the doctrine matters: English Chancery courts in the eighteenth and early nineteenth centuries were broadly willing to enforce precatory language as trusts. By the late nineteenth century, courts in both England and the United States began pulling back, requiring more definite language before imposing trust obligations. Researchers reading cases from different periods will find courts reaching opposite conclusions on nearly identical language, and the date of the decision often explains the outcome more than the specific words used.
The Kentucky case cited in Bouvier's (78 Ky. 128) reflects the more permissive mid-to-late nineteenth century American approach. Do not assume that approach applies uniformly across the Law Mind corpus.
When indexing or analyzing will contests in the corpus, flag any document containing "wish," "request," "desire," "hope," or "recommend" in connection with property disposition. These are the trigger words for the precatory trust question. The absence of imperative language is not the end of the analysis — it is the beginning.
Historical Dictionary Support
Bouvier's Law Dictionary provides a concise but instructive entry: "wish" and "request" in a will are sufficient to raise a trust where the subject and object are sufficiently certain, citing 78 Ky. 128. Bouvier's treatment is characteristic of its era — it states the permissive rule without extensively qualifying the trend away from precatory trust enforcement that was already underway in English courts by the time later editions were compiled.
What Bouvier's does not capture is the significant doctrinal shift that followed. English courts, particularly after Knight v. Knight (1840) and subsequent cases, developed a more structured three-certainties framework that made precatory language harder to enforce. American courts were uneven in adopting this stricter approach, which is why Kentucky and similar states continued to enforce phrases like "wish and request" well into the late nineteenth century while other jurisdictions required plainer imperative language.
Researchers should treat Bouvier's entry as accurately reflecting one strand of American practice without assuming it represents the universal rule.
Jurisdictional Note
American courts varied considerably in their treatment of precatory language, with some states following the more permissive English equity tradition and others requiring express trust language. English law moved toward stricter requirements earlier than most American jurisdictions. Any research involving wills from before 1920 should verify the specific jurisdiction's contemporaneous rule before concluding whether "wish and request" language would have created an enforceable trust.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: TRUSTS (Precatory Trusts); WILLS AND TESTAMENTS (Construction and Interpretation)