A family is gathered in a conference room after a funeral. The will for their mother, a lifelong Manhattan resident, is being read. It contains a line that stops everyone cold: “To my eldest son, I wish for him to have the family apartment, to raise his children there as I raised him. Godspeed.”
The son believes he has just inherited the pre-war co-op. His sister, however, points to another clause that divides all assets equally among the children. She argues the line about the apartment was just a sentimental wish—a blessing, not a bequest. In that moment, a family’s grief is overshadowed by a legal battle that will consume their time, their inheritance, and their relationships. This is the danger of a single, ambiguous word.
When a Wish Is Not a Command
In my practice, I have seen entire estates derailed by what we call “precatory language.” The word comes from the Latin for “to pray” or “to ask.” It is language that expresses a hope, a desire, or a recommendation rather than a clear, legally binding directive. Phrases like “I wish,” “it is my desire,” “I hope,” or “I recommend” can create profound ambiguity.
The core function of a will is to provide unambiguous instructions. It is a legal instrument, not a personal letter. When a testator includes precatory words, they unintentionally create a question for the court: Was this a legally enforceable command disguised in polite language, or was it simply a non-binding suggestion?
The law does not favor ambiguity. A primary goal of estate planning is to remove any doubt about your intentions. Leaving your family with a puzzle to solve—or a lawsuit to fight—is the opposite of prudent stewardship. The language of a will must be dispositive. It must say “I give and bequeath” or “I direct my trustee to,” not “I hope my children will.”
How New York Surrogate’s Court Decides
When a will contains this kind of uncertain language, the matter often ends up before a judge in Surrogate’s Court. The judge’s task is to determine the testator’s intent by looking at the “four corners of the document.” This means they read the will in its entirety, considering how the disputed phrase fits in with the rest of the plan.
The court presumes that a testator intended to make a binding disposition of their property. However, the burden of proof falls on the person who claims the precatory words create a binding obligation or a trust. It is a difficult standard to meet. If the language is seen as merely expressing a motive or a hope, the court will likely rule that it is not enforceable.
When this kind of conflict becomes intractable, a family member may need to commence a formal construction proceeding under New York’s Surrogate’s Court Procedure Act § 1420. This is a lawsuit specifically designed to ask the court to interpret the meaning of a will. It is a costly, time-consuming process that forces a family to litigate the final wishes of a loved one—a situation proper drafting would have avoided.
Separating Sentiment from Instruction
This does not mean your estate plan has to be cold and impersonal. There is immense value in passing on your wisdom, your hopes for your children, and your personal sentiments. But a last will and testament is the wrong place for it.
We often advise clients to draft a separate document, sometimes called a “letter of instruction” or an “ethical will.” This is a personal letter to your family. It is not legally binding and is not submitted to the court. Here, you can explain the thinking behind your decisions. You can offer life advice, share memories, and express your hopes for the future. You can explain why you wanted your son to have the apartment, without creating a legal conflict over whether he actually inherits it.
By separating the legal from the personal, you accomplish two critical goals:
- Your will remains an instrument of clear, unambiguous legal force, minimizing the risk of a court challenge.
- Your heartfelt wishes and personal legacy are preserved in a form that can comfort your family, rather than confuse them.
Stewardship.
Your legacy is more than just assets on a balance sheet. It is also the peace and stability you leave behind for your family. A well-drafted will directs property with precision. A poorly drafted one directs the beneficiaries to their respective attorneys. Words like “Godspeed” are for farewells—they have no place in the functional mechanics of a legal document.
If your current will contains phrases like “I wish” or “I would like,” it may carry a risk you are not aware of. The first step toward clarity is a formal review of your existing documents to identify any such ambiguities and ensure your intentions are stated with undeniable legal force.
