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