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The Use Of "Request," "Wish," "Desire": Precatory Trust Or Not?

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  • Precatory Trust
  • Estates And Trusts


The Use Of "Request," "Wish," "Desire": Precatory Trust Or Not? 1 THE USE OF AAAAREQUEST,@@@@ AAAAWISH@@@@, AAAADESIRE@@@@: PRECATORY TRUST OR NOT? Frank L. Schiavo1 INTRODUCTION AStarlight, starbright, first star I see tonight, I wish I may, I wish I might, have the wish I wish tonight.@ How many times have we heard or used that childhood refrain during our lifetime? We use such words even though we know that wishing won=t make things come true. Those Awish@ words are what the law characterizes as precatory words - words that convey a recommendation rather than a positive command or direction. We often see them used in wills to express a settlor=s intent to create a trust, sometimes being interpreted to impose an obligation on those to whom they are directed - and sometimes not. This article includes a history of the courts= 1 Associate Professor of Law, Barry University Dwayne O. Andreas School of Law. B.S. 1956, Wharton School, University of Pennsylvania; J.D., 1959 Villanova University School of Law; LL.M. (Taxation), 1965, New York University. The author teaches in the area of Wills, Trusts & Estates, Contracts, and Federal Income Tax. He expresses his thanks to his colleagues – Professors Leonard E. Birdsong, Gerard Glynn, and Timothy D. Blevins - who have helped him in reviewing the article and made valuable suggestions for its improvement and to Professor H. Brian Holland for his technical assistance. Appreciation is also extended to librarians Nancy L. Strohmeyer and Ann Pascoe, both of whom contributed their valuable experience. He would be remiss if he did not recognize his wife=s keen editing skills and he does hereby thank her for her contribution, while accepting responsibility for any and all mistakes. Finally, he recognizes Dean J. Richard Hurt, without whose understanding, support and encouragement this article may not have been written. 2 interpretations of those expressions and asks whether there is any bright

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