Duhaime's Law Dictionary


Precatory Words Definition:

Words that express a wish or a desire rather than a clear command.

Related Terms: Will, Memorandum of Articles

Words in at trust document (such as a will) that appear to express a wish or a desire rather than a clear command direction to the trustee.

Precatory words are often found in trusts or wills and cause great difficulties when courts need to find the real intention of the settlor or testator.

For example, the words "all my property to my wife to be disposed of as she may deem just and prudent in the interest of my family" are precatory and may not constitute a trust for family members other than the wife.

Two British cases, circa 1872, and both quoted with approval in the Sureme Court of Canada's decision in Sutherland Estate v. Nicoll Estate, state as follows:

Harland v. Trigg:
"Where the words are not clear, as to their object, they cannot raise a trust. Where this testator had a leasehold estate, which he meant should go to the family, he has used apt words; therefore, where he has not used such words, he had a different intent."
Wynne v. Hawkins:
"Where, in point of context, it is uncertain what property was to be given, and to whom, the words are not sufficient, because it is doubtful what is the confidence which the testator has reposed."

The effect of precatory words was stated in Andronyk v. Cox:

"(P)recatory words ... do not constitute a trust and it is trite law that a trust will not be inferred to perfect an imperfect gift."

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