Morally Binding and Legally Binding Will Provisions

When people choose to write their own wills without the assistance of a professional, it’s not uncommon for there to be vague, non-legally binding provisions in the will. Words and statements that are expressions of wishes are precatory provisions. Precatory provisions in a will are not legally binding, rather they are morally binding. In contrast a mandatory statement in a will is legally binding.

As an estate executor, it’s important to distinguish between provisions that are legally binding and those that could be considered morally binding. A statement in a will that is legally binding must be followed by the executor. On the other hand, a precatory statement is not something that the executor must adhere to, rather it is considered to be a strong suggestion. In this blog we’ll take a look at the differences between the two and how the courts will distinguish between them when it’s unclear.

What’s the Difference?

The most common uses of precatory phrases arise when the will-writer “requests,” “wishes” or “wants” something to happen in their will. Precatory statements are a recommendation where the will-writer is suggesting something, and has not expressed an intent to make their statement legally binding. On the contrary, a mandatory statement would use words such as “must” or “shall”. In mandatory statements, are conclusive. The writer isn’t making a polite request, rather they are telling the executor exactly what is to be done.

What’s the Difference, Legally?

In a precatory statement, the executor has no legal duty to follow the directions of the statement. Further, the courts have no ability to enforce the provision. This is different from a mandatory statement where the executor is required to follow it and the courts can enforce it when the executor fails to follow the provision. Let’s look at some examples to help clarify.

“After my death, I hope to be cremated and the ashes scattered across the gardens of my home.”

As the executor of the will, it’s clear that this is a precatory phrase because of the word “hope”. Morally, the executor should follow this wish and do as the will-writer has asked; however, if it were extremely difficult for the executor to gain access to the gardens as the home had been sold, for example, they would not be obligated to fulfill this wish. The executor can make the decision to cremate the body, but scatter the ashes in a different location. The executor could also choose to have the body buried in a graveyard – it’s up to their discretion. Now, let’s look at an example of a mandatory statement.

“For my niece, she shall receive $10,000 in the form of a trust fund wherein she receives $1,000 every year from the date of my death until the account is emptied.”

By using the word “shall,” the executor is required, by law, to put the funds into a trust account and have it distributed to the niece as described. This is clearly a mandatory, legally binding statement. Where it starts to get complicated is when the statement is vague, but not vague enough to be considered an obviously precatory, or morally binding, statement.

How the Courts Will Differentiate

Aside from the obvious cases, where the language used make it clear whether the provision is a morally binding or legally binding, the courts must analyze the likely intentions of the will-writer.

“It is my desire that my house shall be sold to my daughter for $855,000.”

This phrase contains elements of both precatory and mandatory statements. As an executor, you could make the argument for both types: (1) “it is my desire” is a clear indication of a precatory or morally binding phrase, a mere suggestion, but (2) “shall be sold” is an indicator of a mandatory statement, a legally binding request. In deciding the difference, the courts have a number of approaches that they might use.

The courts might look at other provisions of the will and the language used by the will-writer to try and give some hints as to what was meant by the statement. Using the same example, perhaps the will-writer says “it is my desire,” in every provision of the will, even in clearly mandatory statements. The word “shall” and an exact price of $855,000, along with the evidence from past language in the will could be enough to rule this as a mandatory statement.

The significance of the provision and relationship between the will-writer and beneficiary in question can also play a role in the courts decision. As this provision is for the will-writer’s daughter, it’s likely that they have a close personal relationship. By this logic, it seems reasonable to assume that they had made an informal agreement while the will-writer was still living. The vague language could appear to be disguising a mandatory statement. The circumstances surrounding the gift play an important role and won’t be overlooked by the courts. In the end, the courts are always attempting to determine and enforce what the will-writer intended by the statement.

The best way to avoid confusion between provisions in your will is to contact an experienced estate lawyer to help draft your will. If you’re an executor who can’t differentiate between a precatory or mandatory statement in the will you’re administering, we can help. Alternatively, if you’re a beneficiary who is frustrated by an executor who has failed to undertake their responsibilities, we can also help.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.