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Precatory Words Are Not Binding In Wills and Trusts

 

wish-precatoryIn the law of wills and trusts, precatory words have been defined as words of wish, hope, desire or entreaty accompanying a gift, that the done will dispose of property in some particular way, which may show that a trust was intended.” [At para. 25.] Ladd v. Ladd (2002), 47 E.T.R. (2d) 251, 2002 CarswellOnt 3608 (Ont. S.C.J.).

There are many case examples where such words as “wish, desire, hope, ” are found to be precatory and thus legally non binding.

These words of expression only can be  juxtaposed against legally enforceable words such as “shall or must” and other mandatory words.

 

Rudaczyk Estate v. Ukrainian Evangelical Baptist Assn. of Eastern Canada (1989), 1989 CarswellOnt 534, 69 O.R. (2d) 613, 34 E.T.R. 231, Watt J. (Ont. H.C.) is a good example of this principle.

 

By her will dated September 28, 1981, the testatrix gave the residue of her estate to her trustees on trust to “pay or transfer” it to the Ukrainian Evangelical Baptist Association of Eastern Canada “for its own use absolutely”.

The will also gave to the trustees the various powers set out in a “Schedule Of Trustee’s Powers” which was initialed, attached to and expressly made part of the will.

By a “Memorandum To Trustee” which was signed by the testatrix in the presence of the same two witnesses as the witnesses to the will and which was dated September 28, 1981 the testatrix stated the following:

IT IS MY WISH that you set aside one-quarter of the residue of my estate for the benefit of my niece, [M.K. in the Ukraine] … and use this sum for the purchase and mailing of food, clothing, and other articles as my said niece, may request and you in your absolute discretion shall think fit.

The “Memorandum” was not referred to in the will. ( underlining added for emphasis)

The testatrix died in 1987 and letters probate were issued to the executors of her estate including both the will and the “Memorandum”.

The executors sought the opinion, advice or direction of the Court as to whether the memorandum was legally binding on the trustees or was merely precatory.

The preliminary issue arose as to the admissibility of the affidavit evidence of two persons which evidence related to the making of the will and the “Memorandum”.

Held:

(1) The affidavit evidence relating to the making of the will and memorandum was not admissible since it fell within the general exclusionary rule forbidding the introduction of direct extrinsic evidence of a testator’s actual intention and there was nothing which took the affidavit evidence out of the general rule.

(2) Although the “Memorandum” was executed in accordance with the requirements for making a will, it was to take effect after the testatrix’s death, and contained provisions relating to the disposition of the deceased’s property, its permissive language (particularly when contrasted with the imperative terms used in the will) and its existence as a separate document from the will indicated that it was merely precatory and not legally binding on the trustees

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