When preparing a Will, many people seek not only to distribute their property but also to express personal wishes, hopes, or aspirations for how their assets might be used after their death. However, there’s a critical legal distinction between making a binding obligation and expressing a mere wish or expectation. The latter is known as precatory language, and its interpretation can profoundly affect the administration of an estate.
A recent Ontario Superior Court decision, Gruber v. Hebrew University, illustrates the complexity and importance of distinguishing between precatory wishes and enforceable obligations.
What is Precatory Language?
Precatory language refers to expressions in a Will that indicate a desire or recommendation but do not create a legally binding obligation. Common examples include phrases such as “I wish,” “I hope,” or “it is my desire.” Courts generally interpret these statements as non-binding, reflecting the testator’s personal intentions rather than imposing strict legal duties.
The Case: Gruber v. Hebrew University
In this recent case, the deceased, Mr. Glickman, left his entire estate to Hebrew University, intending the funds to support a project promoting peaceful coexistence between Jews and Arabs. However, his Will contained language like “basic assumptions” that “must guide” the use of funds rather than explicitly binding terms. The estate trustee was uncertain about how to interpret these instructions, prompting court intervention.
The court addressed the crucial question: Did Mr. Glickman’s statements create legally enforceable obligations (a charitable trust), or were they merely precatory?
The court examined both the language of the Will and the context surrounding its creation. It determined that despite detailed guidelines, Mr. Glickman’s words were precatory, expressing wishes or aspirations rather than binding conditions. Specifically, the court noted:
- The testator used the term “assumptions” instead of explicit conditions or obligations.
- The provisions acknowledged future uncertainties and the potential need for flexibility.
- The language indicated a desire rather than a requirement to establish a formal trust or charitable foundation.
Ultimately, the court concluded that Mr. Glickman’s gift to the Hebrew University was an outright donation. The University agreed voluntarily to honour his wishes, reinforcing that the estate funds would support projects aligned with his original intentions.
Lessons for Drafting Your Will
The Gruber decision underscores some valuable lessons when drafting a Will:
- Be clear on your intentions: Clearly specify whether particular instructions are meant to be binding obligations or merely reflect personal hopes or wishes.
- Consider formal structures: If you want a binding legal structure, consider explicitly creating a trust or foundation. Professional advice from legal counsel can be invaluable here.
- Address Contingencies: As the case highlighted, circumstances can change significantly after a Will is drafted. Building flexibility into your wishes, without undermining clarity, can ensure your intent is honoured.
- Seek Professional Advice: Professional drafting can prevent ambiguity. Lawyers experienced in estates can ensure your wishes are expressed in legally effective language that clearly differentiates between binding obligations and precatory language.
Navigating precatory language can be challenging. Although expressing your wishes can give valuable insight and guidance to beneficiaries, unclear language may inadvertently lead to confusion or disputes. Clarity, flexibility, and professional guidance are key to ensuring your intentions are fully understood and carried out after your death.
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