Estate of Rodriguez, No. 04-17-00005-CV, 2018 WL 340137 (Tex. App.—San Antonio Jan. 10, 2018, no pet.).


Interpretation and Construction

Precatory Language


The testator’s will provided that it was the testator’s “desire” that his ranch stay “intact as long as it is reasonable.” Using the power of sale granted under the will, the executor entered into a contract to sell the land. One of the beneficiaries objected to no avail at the trial court.


The appellate court affirmed. The court explained that the term “desire” is normally precatory and non-binding absent other circumstances. No special circumstances existed in this case and, in fact, the will and trust used mandatory language granting the executor/trustee the power to sell the property.


The court also rejected the beneficiary’s claim that she had a right of first refusal to purchase the property. Although the trust provided that a beneficiary could only sell the property to co-beneficiaries, there was no requirement that the trustee offer the beneficiaries the opportunity to purchase the property.


Moral:  If a client wishes to include non-binding directions in a will or trust, those directions should expressly state that they are non-binding to avoid claims that they are mandatory. Better yet, consider omitting precatory instructions completely.