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Precatory trusts in Wills

A so-called ‘precatory trust’ is when a testator makes an outright gift of property to a legatee, but also includes in the Will an unenforceable direction to the legatee to further dispose of the property in favour of others. Often the direction is expressed as a ‘wish’, ‘hope’, or ‘desire’. Since no imperative fiduciary duty falls on the legatee, as with a normal trust, the legatee is free to ignore what the testator has said and is at best under only a moral obligation to dispose of the property in accordance with the testator’s direction.

The most common form of precatory trust is one of the testator’s chattels, such as:

‘I give to John Smith absolutely all my personal chattels as defined in section 55(l)(x) of the Administration of Estates Act 1925 and without imposing any trust or binding obligation upon him to distribute the same in accordance with any memorandum of my wishes left by me.’

The advantage of such an arrangement is to give more