Case Law Update: Precatory Language

A gift made with an “understanding” for its use does not create a conditional gift.

The testator’s holographic will gave her residuary estate to her sister “with the understanding that she will take care of my mother.” In a dispute between the sister and the testator’s brother, an intestate heir, the trial court and the intermediate appellate court held that the language created a conditional gift.

In Estate of Brill, No. 2009–CT–01968–SCT (Miss. Dec. 15, 2011), the Mississippi Supreme Court reversed in an opinion thoroughly analyzing the Mississippi precedents and holding that the language was precatory and thus the will gave the sister fee simple ownership of the residuary estate.

Special thanks to William P. LaPiana (Rita and Joseph Solomon Professor of Wills, Trusts,and Estates, New York Law School) for bringing this case law update to my attention.