The recent Saskatchewan Court of Appeal decision in Hipkins v McDonald, 2025 SKCA 34 reminds estate planners of the concept of precatory language.

Precatory language expresses a desire but does not create a legally binding obligation. Examples may include phrases such as “I hope” or “I wish” or “it is my desire.”

Courts often interpret these statements as non-binding. They may be considered as reflective of the deceased’s wishes but not imposing strict legal duties on the executors.

Any lawyers who use precatory language in their wills should take certain steps before doing so. These may include a candid discussion with the testator as to whether a given situation is appropriate for the use of non-binding “wishes”, a discussion of the legal effect of precatory language, and a discussion of the potential for family discord if precatory statements are misinterpreted or entirely ignored.

Background:

Hipkins was a lengthy decision which included various principles of law which are not estate-specific. This case comment solely focuses on the issue of precatory language as it was discussed in Hipkins.

The relevant factual background in Hipkins involved the below circumstances.

1. The dispute arose in relation to a cottage owned by the deceased Donna Marie McDonald (“Deceased”).
2. The Deceased’s children did not agree on what her intentions were in relation to a cottage that she had owned. As such, they were not able to form a joint plan for its future ownership and seasonal use.

The language of the Will:

3. The Deceased died in July 2018, and was survived by her three adult children, Ms. Hipkins, Mr. McDonald and Ms. Serhan. Under the terms of the Will, the Deceased appointed her three children, “jointly or the survivor of them”, as executors and named them as trustees to administer her estate (“Estate”).
4. The Deceased left a last will and testament (“Will”).
5. The Will empowered the executors to liquidate the Deceased’s Estate and directed them to pay her debts. It then went on to set out the below provision in relation to a cottage:

2.c. I DIRECT my Trustees to divide and distribute the rest and residue of my estate to my children, CARLA HIPKINS, BRIAN MCDONALD, and ROXANNE SERHAN,to each an equal share, share and share alike, provided that:

1. 1. 1. 1. IT IS MY WISH AND DESIRE that the cabin that I own be transferred to my children who survive me as joint tenants with right of survivorship.
         2. If one of my said children predecease me with issue (my grandchildren), or a balance of their share remains, then their share of my estate shall be held in trust, by my Trustees, an equal share for each and distributed to that child’s issue when they attain the full age of eighteen years; and should any of that child’s issue die before attaining the age of eighteen years, then the share of that child’s issue shall be distributed to the surviving children of that child when they attain the full age of eighteen; and,
         3. In the event that a child of mine should predecease me without issue, or if a child should predecease me with issue, none of whom survive their eighteenth birthdays, and a balance remains, then that share of my estate shall be distributed equally among my surviving children.
            
            [emphasis added]

6. The cottage (“Cottage”) was located at Greenwater Lake Provincial Park, on land leased from the provincial government.
7. One important issue before the Court of King’s Bench, and later the Court of Appeal, was whether the Will indeed “required” that the cottage be transferred into the names of all three of Mr. McDonald, Ms. Hipkins and Ms. Serhan. The alternative interpretation was that the Will simply set out a non-binding wish that such transference occur, but did not impose a binding direction that it be done.

The Chambers Justice’s interpretation of the Will:

8. The Will contained both mandatory and non-mandatory directions:

1. 1. First, the mandatory language used in the Will was simple and clear. The Will imposed specific instructions on the co-executors/trustees using the plain words “I direct”. The Deceased directed them to, among other things:

1. 1. 1. Make payment of her just debts, etc.; and
      2. Divide and distribute the rest and residue of her Estate equally among her children.

1. 2. However, in contrast to these clear, specific instructions she went on in other terms to express her “wish and desire” that the cottage transfer to her children as joint tenants with the right of survivorship.

9. The Chambers Justice determined that if transferring the cottage to the children by way of a joint tenancy had been intended to be a legally binding term, then the Deceased would have used the same obligatory “I direct” language that she employed elsewhere in the Will.
10. As a result, the Chambers Justice was not persuaded that the Deceased’s choice of the words “wish and desire” was anything more than an expression of her “hope” regarding how her children would share their interests in the Cottage.
11. Moreover, the Chambers Justice relied on case law which provided that an expressed “wish” and/or “desire” in a testamentary disposition does not impose a mandatory obligation on the Estate executors/trustees”. Instead, the Chambers Justice concluded that a “wish and desire” is merely an indication of an unenforceable request.

Issue:

This case comment focuses narrowly on whether was the Cottage provision in the Will was precatory or not.

Decision in Hipkins v McDonald:

The Court found that the Will’s language was precatory. This meant that while it expressed a wish or request, it did not impose a legal obligation.

The Court of Appeal briefly surveyed the proper approach to the interpretation of wills. The proper interpretation of a will must begin with the text used by the testator.

The Court of Appeal agreed with the Chambers Justice that the language used in the Will was simple and clear. Significantly, the Will notably used different language in the context of giving different instructions to the executors about various matters.

For example, the Deceased had used mandatory wording in some situations. For example, the Will contained the Deceased’s statement, in plain words, giving a command (“I DIRECT”) that her executors pay her debts. The Court of Appeal held that this made sense, since creditors must be paid before beneficiaries receive a share of the Estate. Likewise, the Deceased used mandatory language when she instructed her executors to divide her Estate equally among her children (“I DIRECT my Trustees to divide and distribute the rest and residue of my estate to my children… to each an equal share, share and share alike”).

However, by comparison, such mandatory wording stood in contrast to the precatory wording that the Deceased gave to her executors regarding the Cottage. In such provisions she merely said that it was her “WISH AND DESIRE” that this be done, in part, by transferring the Cottage into their names as joint owners with a right of survivorship. The language was not that of command but rather is precatory. The Court of Appeal concluded the below:

[54]           Reading the Will as a whole and giving its words their ordinary, natural and grammatical meaning, I can only interpret it in the same way as did the judge: the instruction given to the executors in paragraph 2(c)(i) was precatory. Ms. McDonald chose not to make a specific bequest concerning the Property. Instead, she allowed it to be dealt with as part of the residue of her estate, which the executors were instructed to divide equally among her children. Paragraph 2(c)(i) is an expression of Ms. McDonald’s hope that her executors would divide that part of the residue of her estate consisting of the Property equally among her children by transferring it to them as joint tenants with a right of survivorship. However, paragraph 2(c)(i) did not impose a mandatory obligation on the executors to do so.

…

[56]           …Said another way, paragraph 2(c)(i) fails to qualify as a mandatory direction not because of any uncertainty as to what joint tenants with right of survivorship  Rather, it is not a mandatory direction because it was expressed as a statement of mere wish and desire.

The Court of Appeal also commented on the fact that the Deceased had used a lawyer when drafting her Will. The Court said that such fact reinforced the conclusion that the language in relation to the Cottage was deliberately intended to be non-binding in its effect:

[64]           In a related submission, Ms. Hipkins also argued in her factum that the judge erred by failing to consider that, in the execution of her Will, Ms. McDonald “sought the expertise and guidance of a lawyer”. She says that “an inference can be drawn that said lawyer provided [Ms. McDonald] with prudent and competent legal advice” and that “there is a viable explanation as to why [Ms. McDonald] framed the gift of the Cabin as a ‘wish and desire’ that the Chambers judge failed to consider”. As I see it, this argument adds nothing to the others, since it reinforces that the language was deliberately precatory. I say this because a lawyer is apt to understand that the use of different words in the Will will generally be understood to convey different things. In this regard, a lawyer is also more likely than a lay person to understand the difference between mandatory and precatory instructions.

[emphasis added]

Conclusion:

The decision in Hipkins v McDonald reminds us to use care when inserting precatory language into wills. Precatory language expresses non-binding hopes (“wish,” “desire,” “request”) rather than strict obligations.

Estate planning lawyers should ensure they turn their minds to the below when using precatory language in wills:

1. Does the testator even wish to use precatory language? Does the testator want a given term to still express a non-binding wish? In some select situations and some family situations, that may be a desirable choice if the testator feels that specific people – who happen to be her executor or beneficiaries – would genuinely appreciate knowing the non-binding intention of the testator. Some testators enjoy family dynamics where an expression of what the deceased sincerely desired will be respected by the beneficiaries even the wording is not legally binding;
2. Is the right word being used: If a client however wishes for a given provision to be binding, ensure that the proper word is used. Differentiate between mandatory terms (“shall,” “must”) and precatory terms (“wish,” “hope,” “desire”) to avoid ambiguity and possible misinterpretation in the will;
3. Analyze relevant family dynamics: In some family dynamics the inclusion of non-binding wishes can be hazardous. That is, it can lead to disputes where one side says that the testator intended X to be a mandatory obligation, and the other side says that the testator did not intend X to be a mandatory obligation. Lawyers should warn the testator of possible consequences. These may include the risk of litigation, family discord, or disappointed beneficiaries if precatory statements are misinterpreted or ignored; and
4. Use clear wording in the Will to show it is non-binding: If a testator firmly wishes to use non-binding wording, make it clear in the Will that such language is non-binding. That may prevent the risk of someone later misinterpreting the language and requiring a court application to provide clarity. For example, someone could use language such as “It is my wish and desire, but not my express requirement, that…”
5. Explain the nature of precatory language to clients: Communicate to the client that including precatory wishes does not legally bind executors or beneficiaries, and may be disregarded or misunderstood during administration.