A precatory trust is an express trust that is created with language that expresses a future intent or a wish that is often conditional, 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 if a clear intent can be inferred. The primary problem is deciphering whether the testator intended the language to be a direction or merely describing an aspiration. 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. Also, some courts treat precatory language differently depending on to whom a statement is made. For example, California courts have made precatory language binding if addressed to an executor but discretionary if addressed to a beneficiary (see Estate of Moore, 253 Cal. App. 2d 945, 949 (1967)).
[Last updated in October of 2023 by the Wex Definitions Team]
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