Numerous appellate courts have tried to clear the distinction between what is referred to among probate lawyers as mandatory or precatory language in a Last Will and Testament. In 2011, the Fort Worth Court of Appeals chimed in. Mandatory language is directive in nature. It is a true stated intent. Precatory language is something less. It indicates a desire without issuing a command. But does the Court’s opinion make it easier or more difficult to determine if a decedent’s instructions are mandatory or if they leave room for discretion?
In many cases, Wills are carefully drafted. Great care is taken to avoid using words like “money,” “funds” or “personal property,” unless those broad terms are also defined in the Will itself. Ambiguity in a Will is a very common source of litigation, and most Wills are drafted to avoid ambiguity.
But not all Wills are drafted by attorneys. In many cases, the Court is required to examine a holographic, or handwritten, document to determine (a) if it is a Will, and (b) what it really says. In the case of holographic Wills, the issue of mandatory/precatory language can often arise. Precatory language — phrases like “I would like,” or “I recommend,” is usually deemed to be suggestive. Suggestive Wills aren’t really Wills at all.
Fort Worth’s Court examined the issue in the Estate of Abshire. At first glance, there were two potentially troublesome parts of a very brief holographic Will written by the decedent. First, the parties to the Will contest disputed what the word “funds” meant, and disagreed over whether or not the word included liquid personal property (cash) or funds of the estate as a whole (cash, personal property, real property, etc.) Second, the decedent used the phrase “as a rough guide, I would like…” to then outline specific percentages of her estate intended to pass to beneficiaries.
So the stage was set for a heated Will contest. If the language is mandatory, the Will governs and the property passes to the beneficiaries named therein. If the language is precatory, the Will fails to properly dispose of property, and the result is intestacy — which means that the property would pass to the decedent’s heirs as determined by statute.
While trying to clear the issues between mandatory and precatory language, the appellate court must also consider the public policy in Texas, which favors disposition by Will over intestacy. We would rather have poor Wills than no Wills at all. In fact, a good number of courts have made some rather remarkable conclusions to protect this public policy, and the Abshire case is no different. The appellants argued that the “rough guide,” language logically seems to imply that someone other than the decedent gets to ultimately decide how to divide the property. The Court flatly disagreed, and said that agreeing with this logic would thwart the rather clear intent of the decedent to make a handwritten Will in the first place.
That’s tough to argue with, but if a phrase like “rough guide” is determined to be mandatory and commanding, what phrases wouldn’t make the cut? Is it safe to assume that sloppy or ambiguous Will language could become more acceptable in light of the weight of the public policy favoring testamentary disposition over intestacy? Are we really so against the idea of a decedent dying intestate that the distinction between mandatory and precatory language is just academic?
The Abshire case, unfortunately, probably poses more questions than it does answers. Soon, the Texas Supreme Court will have the chance to weigh in on the issue. Regardless of their decision, we will likely continue to see a rise in probate litigation founded on ambiguous Will language.