Matter of Estate of Wharton, 632 S.W.3d 597 (Tex. App.—El Paso 2020, no pet.).


Interpretation and Construction

Precatory or Mandatory Language?

The testator’s will stated his “desire” that the executor sell his majority stake in a company to his business partner. When the executor did not do so, the business partner sued to compel the sale of the stock. The trial court held that the testator’s will did not impose a legal obligation on the executor to sell the stock to her and that she is not a beneficiary of the will. The business partner appealed.


The appellate court held instead that the will reflected the testator’s intent that the stock be sold and the proceeds given to named beneficiaries. The court recognized that the term “desire” is normally precatory but can be mandatory depending on the context of the entire will especially if it clearly express the testator’s intention in making a distribution of property. However, the court agreed that the will did not necessarily impose an obligation on the executor to sell the stock to the business partner. The court agreed with the executor that the testator could not make a sale to the business partner mandatory because such a sale would be contingent on her agreeing to purchase and having the funds to do so. In addition, the testator indicated that the sale was subject to additional terms that would need to be negotiated.


The court concluded that neither the executor nor the business partner had sufficient evidence to justify a summary judgment on whether the sale to the business partner was mandatory. Thus, the court reversed the trial court’s judgment and remanded for further proceedings.


Moral:  A testator should avoid precatory language. Instead, instructions need to be clearly and completely stated to avoid disputes.