Precatory Trust

A precatory trust is an express trust that is created with language that expresses a future intent or a wish, but in which the court nevertheless finds legally enforceable duties. Normally trust language must express a present intent to create legally enforceable duties on the trustee in order to have trust intent. If there is no trust intent, the trust fails. Sometimes the court will nonetheless find intent to create legally enforceable duties in a trust that uses precatory language by looking at fiduciary and familial relationships. If there is a familial or fiduciary relationship between the parties, the court will often use that context to presume that intent to create enforceable duties exists.  Thus, the trust will not fail for lack of trust intent.

 

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