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California Trust Litigation: Is It Real, Or is it Precatory? Only Your Trial Judge Knows for Sure

by | Jan 3, 2023 | Trust & Estate Litigation, Trust Disputes

This is our third Blog article in a series dealing with common scenarios that frequently lead to litigation.  This week we are discussing the issue of “precatory language.”  This is a problem that Buffington Law Firm’s trust litigation attorneys have dealt with in cases, and at trial, numerous times.

“Precatory language” is language that is not intended to be an operative part of a living trust, but which merely describes something without meaning to be instructive.  Usually this involves the “hopes” or “preferences” of a trustmaker.  For example, a trust might hypothetically say “I leave my entire estate to John, my eldest son.  I hope that John will share this bounty with my other children.”  In this scenario, the operative and legally enforceable part of this sentence is that John is cleaning up, getting everything in the estate.  The part about the trustor hoping that John will share this windfall is “precatory” — it is merely the expression of a hope; arguably not a legally enforceable part of the trust writing. You can bet that John will not be doing much sharing.

Precatory language is usually pretty clearly just that.  But not always.  For example, one trust that our Firm’s trust litigation team handles provided:  “It is my preference that the Trust estate remain intact in perpetuity.  However, if a majority of beneficiaries vote to dissolve this Dynasty Trust, then the Trust may be dissolved forthwith.”  Similar language to this resulted in a three week trial, where some beneficiaries claimed that they had the right to vote to dissolve the trust, while another set of beneficiaries claimed that the part about voting was discretionary “precatory” language because it said that the trust “may” be dissolved instead of “shall” be dissolved.  I know, I know, it should have been clear.  This cautionary anecdote shows how harmful precatory language can be.

The lesson here for estate planning attorneys is that they should keep the blather about the trustmaker’s “hopes,” his or her “preferences” and the like out of the trust writing.  Of course the trustmaker is, after all, the drafting attorney’s client and clients often want this superfluous language to be in the trust so that they can communicate “from the grave” if you will.  Attorneys should nonetheless discourage this.  Trust litigation can be expensive, and there is simply no good reason for this kind of language to be contained in a trust.  Short, clear language about how the trust operates should be the rule.  If there absolutely must be precatory language, it should be in a Recitals (or “Whereas”) section, not sprinkled throughout the document.  Example: “It is the Trustors’ intent that the Trust Estate be distributed and wound up as promptly as circumstances allow, taking into account tax, valuation, and related issues.”  This is precatory language properly applied: it helps an interpreting judge (or other reader) understand what the trust writing is trying to achieve. Just as a formal business contract minimizes precatory language, so should a trust. Avoid “speaking from the grave.”

  • Obviously, recitals can (and should) speak of a Trustor’s intent where appropriate, e.g. “The trustor acknowledges her daughter Hillary and intentionally does not provide for her and instead disinherits her in this Trust…”

The lesson here is that careless language in a trust can result in very expensive litigation.  The tragedy is that this can easily be avoided by careful drafting.  Unfortunately, we have seen trusts that were so heavily larded with precatory language about the trustmakers “hopes” and so forth that it was almost impossible to unequivocally figure out what the trust actually meant.  Avoid this!

If you have a trust or inheritance dispute, Buffington Law Firm’s trust litigation attorneys invite you to contact us for a Free Legal Consultation.  All consultations are with an experienced trust litigation attorney, are protected by the attorney-client privilege, and there is never any obligation.

Roger J. Buffington