In determining whether particular words are to be construed as precatory or mandatory, the court will look to the expressed intent of the decedent, as found from the context of the will or trust and surrounding circumstances; and words which, in their ordinary meaning, are precatory will be construed as mandatory only when it is evident that such was the decedent’s intent. See 95 C.J.S. Section 602b.

Precatory words. As a general rule, language contained in a Will or Trust such as “wish,” “want,” “recommend,” or “desire” is merely an expression of the decedent’s wishes or desires; it is not legally binding on the donee. When precatory words are used and no imperative duty is imposed, performance is left to the sense of gratitude and discretion on the part of the donee. The obligation of the donee of the gift is moral only; no legal duty is imposed upon him. The donee can carry out the wish and desire of the decedent as he sees fit. The courts have no control over the donee’s actions and cannot substitute its judgment for the donee’s judgment.

Where a provision of a will directs the PR or trustee to use a particular attorney or realtor, such language is only advisory. In Re: The Estate of Fresia, 390 So. 2d 176 (Fla. 5th DCA 1980); In re Marks Estate, 83 So.2d 853 at 854 (Fla. 1955); Nantell v. Lim-Wick Const. Co., 228 So.2d 634 (Fla. 4th DCA 1970).

A precatory oral will was found to be valid in Glenn v. Roberts, 2012 Fla. App. LEXIS 9850 (Fla. 3rd DCA 6/20/12).  In Glenn, Article THIRD of the will read: “I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature, and wheresoever the same may be situate unto my friend, TERRY GLENN, having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire he benefit.” The appellant argued that Article THIRD constituted an unauthorized oral will and therefore, was invalid. The appellate court disagreed. The court reasoned that the language in the will is merely precatory, and not mandatory. The language does not mandate the donee to distribute the residuary estate according to instructions from the decedent, but rather, simply expresses the decedent’s hope that the donee will honor all of her “requests. In other words, the unambiguous language of Article THIRD devises the entire residuary estate to the donee, who then has the discretion to honor the decedent’s requests.  The court distinguished Estate of Corbin v. Sherman, 645 So. 2d 39 (Fla. 1st DCA 1994), where the language in the will was clearly mandatory as it referenced oral instructions for the distribution of property (“to dispose of as she has been instructed”). Because it mandated the distribution of the decedent’s estate pursuant to oral instructions, it constituted an unauthorized oral will.

In Haltom v. Austin National Bank, 487 S.W.2d 201 (TX 1972), the appeal involved the construction of the holographic will. The principal question to be decided was whether the words, “would like”, as used in the will, are precatory or mandatory. The will reads: “I, Wayman E. Adams, being of sound mind, will that in case of my death all property of which I am possessed go to my wife Margaret Boroughs Adams as long as she lives. And after her death if it has not been necessary to dispose of it would like our home at 2815 San Gabriel, Austin Texas be given to the Texas Fine Arts Association for a small museum—All paintings other real estate and personal property be administered by the Austin National Bank with advice from Mr. Ben Thrasher and Miss Ima Hogg— for the benefit of our son Wayman Jr.” [emphasis added]. Appellants argue that the words, “would like”, are the choice words and measured phrase of a cultivated gentleman who wrote, not with legal precision, but rather with polite and gentle language. They say that the critical words, though ordinarily denoting desire, are, in effect, words of command cloaked in the language of civility. The appellate court disagreed and held that the reference to the Texas Fine Arts Association in the will is precatory and that the Association acquired nothing under the will. The court reasoned that the appellants’ view of the words, “would like”, departs substantially from general notions. The word, “would”, is frequently used in expressions of desire or wish, (Webster’s New International Dictionary, Second Edition), and the word, “like”, is akin to words such as desire or wish. Roget’s International Thesaurus (Third Edition).

Mandatory words. As a general rule, language contained in a Will or Trust such as “I direct” is legally binding on the donee. See Sturdevant v. SAE Warehouse, Inc., 270 N.W.2d 794, 800 (N.D. 1978) (Use of the word “direct” indicates a command or order.) Hotelier and real estate magnate Leona Helmsley “directed” in her Will that her mausoleum be acid washed or steam cleaned at least annually. She also “directed” that, upon her dog’s death, her remains were to be buried next to Mrs. Helmsley’s remains, in her (presumably freshly acid washed or steam cleaned) mausoleum.

In a technical advice memorandum, Number: 201126030 (3/1/11). the IRS concluded that the words “it is my desire” in a decedent’s will constitute mandatory language that passes equity interests to the decedent’s children as specific bequests that reduce the marital deduction and increase the taxable estate.

Leona Helmsley died from congestive heart failure at the age of 87, on August 20, 2007, at Dunnellen Hall, her summer home in Greenwich, Connecticut.Cardiovascular disease ran in her family, claiming the lives of her father, son and a sister. After a week at the Frank E. Campbell Funeral Chapel, she was entombed next to Harry Helmsley in a mausoleum constructed for $1.4 million[32] and set on ¾-acres in Sleepy Hollow Cemetery, Westchester County, New York. Among the few distinctive features of the mausoleum are three wall-embedded stained-glass windows, in the style of Louis Tiffany, showing the skyline of Manhattan.

The mausoleum of Harry Helmsley in Sleepy Hollow Cemetery

Helmsley left the bulk of her estate—estimated at more than $4 billion—to the Leona M. and Harry B. Helmsley Charitable Trust. She left instructions that the trust, now valued at $5 to $8 billion, be used to benefit dogs. The trust is not legally bound to these wishes.

She also left her Maltese dog, Trouble, a $12 million trust fund. This sum was subsequently reduced to $2 million. Her choice was branded 3rd in Fortune’s “101 Dumbest Moments in Business” of 2007. Trouble lived in Florida with Carl Lekic, the general manager of the Helmsley Sandcastle Hotel, with several death threats having been received. Lekic, Trouble’s caretaker, stated that $2 million would pay for the dog’s maintenance for more than 10 years—the annual $100,000 for full-time security, $8,000 for grooming and $1,200 for food. Lekic is paid a $60,000 annual guardian fee.” Trouble died at age twelve in December 2010, with the remainder of the funds reverted to the Leona M. and Harry B. Helmsley Charitable Trust. Although Helmsley’s wishes were to have the dog interred with her in the mausoleum, New York state law prohibits interment of pets in human cemeteries and the dog was subsequently cremated.

She left $15 million for her brother Alvin Rosenthal.

Helmsley had four grandchildren. Two of them each received $5 million in trust and $5 million in cash, under the condition that they visit their father’s grave site once each calendar year. Their signing a registration book would prove that they had visited the grave.[44] Her other two grandchildren, Craig and Meegan Panzirer, received nothing.

In a judgment (published on June 16, 2008), Manhattan Surrogate Court Judge Reena Roth ruled Helmsley was mentally unfit when she executed her will. Hence, the Court, amid settlement, reduced the $12 million trust fund for the pet Trouble to $2 million. Of the $10 million originally bequeathed to Trouble, $4 million was awarded to the Charitable Trust, and $6 million was awarded to Craig and Meegan Panzirer, who had been disinherited by the will. The ruling requires the Panzirers to keep silent about their dispute with their grandmother and deliver to the court any documents they have about her. It has been alleged that they were omitted from the will because they failed to name any of their children after her late husband.

Helmsley also left $100,000 to her chauffeur, Nicholas Celea.





  1. I direct my Executors to sell all my personal residences that I may own at my death and to add the net proceeds of sale to my residuary estate to be disposed of in accordance with the provisions of Article THREE hereof.
  1. I direct my Executors to sell all my furniture, furnishings, books, paintings and other objects of art, wearing apparel, jewelry, automobiles, and all other tangible personal property and to add the net sales proceeds to my residuary estate, to be disposed of in accordance with the provisions of Article THREE hereof.
  1. I give the sum of Three Million Dollars ($3,000,000) to a separate trust to be known as “THE HELMSLEY PERPETURAL CARE TRUST” (referred to within this paragraph as the “Trust”), upon the terms set forth in this paragraph C.

(1) The Trust shall provide for the perpetual care and maintenance of (i) the Helmsley Mausoleum at Woodlawn Cemetery, Bronx, New York, containing the remains of my husband, Harry B. Helmsley and my son, Jay Panzirer, and my remains, or such other final resting place as may be designated as indicated above, (ii) the Brakmann Mausoleum at Woodlawn Cemetery, Bronx, New York, and (iii) the Rosenthal/Roman burial plots located at the Mt. Hebron Cemetery, Flushing, New York, containing the remains of my mother, Ida Rosenthal my father, Morris Rosenthal, my sister, Sylvia Roman, and my brother-in-law, Irving Roman (collectively (i), (ii) and (iii) shall be referred to as the “Final Resting Places”). [*2]

(2) My Trustees shall distribute any part of the trust income and principal, at ay time or times, as my Trustees shall determine in their sole discretion is advisable (i) for the care, cleaning, maintenance, repair and preservation of the interior and exterior of the Final Resting Places, and (ii) for the care, planting and cultivation of the lawn, trees, shrubs, flowers, plant or hedges located on the cemetery plots on which the Final Resting Places are located. I direct that my Trustees arrange for the Mausoleums to be acid washed or steam cleaned at least once a year. Any undistributed net income shall be added to principal at intervals determined by my Trustees. I direct my Trustees to maintain the Final Resting Places in excellent condition, and to arrange for inspection of the Final Resting Places as often as may be necessary (but not less often than quarterly) to ensure their proper care and maintenance.

(3) The duration of this trust shall be perpetual, it being my intention to create a trust for cemetery purposes pursuant to Section 8-1.5 of the New York Estates, Powers and Trusts Law (“EPTL”), and I direct that all of the provisions of this Article shall be construed accordingly. If any of the Final Resting Places are in cemeteries which are razed or otherwise cease to function as cemeteries, I direct that such Final Resting Places be moved to another cemetery and the provisions of this paragraph C continue to apply to said new Final Resting Place or Places.