San Diego Estate Planning Lawyer Blog
James Gandolfini, the film and television actor best known for his starring role in the HBO series The Sopranos, died on June 19 while vacationing in Italy. The New York Post reported on July 3 that Gandolfini, a New York City resident, left an estate valued at nearly $70 million. According to the terms of Gandolfini’s last will and testament, filed in New York County Surrogate’s Court, most of the late actor’s estate will go to his two children.
Gandolfini’s will identified two principal real properties, a New York City condominium and a house in Italy. Gandolfini directed his executors to grant the first option to purchase his New York condo to a trust created for the benefit of his son. His Italian home, and the surrounding land, will be held in trust until his children reach 25 years of age, at which point they will each receive a 50% interest in the property.
Precatory Language & Beneficiaries
The Post noted that Gandolfini’s will stated it was his “hope and desire” that his children keep his Italian property “in our family for as long as possible.” But is such a statement legally binding? Generally, the answer is no. When a person makes a will and includes statements regarding hopes or intentions, it is called precatory language. Such language does not impose a legal duty or create a binding obligation.
As the California Supreme Court noted in a 1941 decision, the courts should treat language as precatory when it is directed at the intended recipients of a person’s estate rather than the executor, who acts as a fiduciary:
It has been stated frequently that when words of recommendation, request and the like are used in direct reference to the estate, they are prima facie testamentary and imperative, and not precatory. While the desire of a testator for the disposal of his estate is a mere request when addressed to his devisee, it is to be construed as a command when addressed to his executor. All expressions indicative of his wish or will are commands.
In the case of Gandolfini’s estate, his will directs his Italian property placed in trust until each child turns 25. That is a command that his executors (and trustees) they must follow. His wishes regarding what his children do after they turn 25 and receive a final distribution of the property from the trust is precatory; the will imposes no legal duty on them to keep the property once it is free of trust.
Precatory Language & Charities
Precatory language is commonly used in wills with respect to specific bequests to individuals or charitable organizations. For example, Gandolfini’s will made a gift of $50,000 to a friend “with the hope that he will use it for the benefit of his son.” This is clearly precatory language; the friend need not prove to the executors or the Surrogate’s Court that the gift is used as Gandolfini wished.
When making a gift to charity is common for a will to state the bequest should be used “for the general charitable purposes of the organization.” There may be some cases where a bequest is made to benefit a specific program administered by the charity, such as a scholarship fund. Many large charities employ planned giving officers who can work with you and your estate planning attorney to devise appropriate language. If you have any questions regarding precatory language and how it can affect your own will, please contact the Law Office of Scott C. Soady anytime.