Precatory Trust in a Will UK: When 'I Wish' Creates a Trust
Updated: 18 May 2026 • Reading time: 7 min
A will that says “I give my estate to my wife, trusting she will provide for the children” sounds like it creates an obligation. It may not. Words of hope, confidence, or desire in a will — what lawyers call precatory language — only create an enforceable trust if, read as a whole, the will shows an imperative intention to impose a binding obligation. If the language is merely expressive of a wish, the recipient takes an absolute gift and can do as they please.
What is a Precatory Trust?
A precatory trust is a trust alleged to arise from words in a gift that express a hope, wish, or confidence that the recipient will use the property in a particular way. Common precatory phrases include:
- “I wish” / “I hope” / “I desire”
- “I request” / “I recommend”
- “I trust” / “in full confidence”
- “I feel sure” / “I have no doubt”
Whether these words impose a legally binding trust or merely express a moral hope depends on the whole context of the will. If a trust is found, the recipient holds the property for the named beneficiary and must apply it accordingly. If not, the recipient takes an absolute gift.
The Three Certainties
For any trust to be valid — precatory or otherwise — the three certainties must be satisfied:
| Certainty | Requirement | Precatory pitfall |
|---|---|---|
| Intention | The words must impose an imperative obligation, not a mere wish | Precatory words are presumptively non-imperative |
| Subject matter | The property subject to the trust must be identifiable | “Such part as she thinks appropriate” is void for uncertainty |
| Objects | The beneficiaries must be ascertainable | “Those she thinks deserving” is void for uncertainty |
Re Adams and the Kensington Vestry [1884]
The leading modern authority is Re Adams and the Kensington Vestry (1884) 27 ChD 394. The testator gave all his estate to his wife “in full confidence that she will do what is right as to the disposal thereof between my children, either in her lifetime or by will”. The Court of Appeal held that no trust was created. The words expressed a moral expectation and a confidence in the wife’s judgment; they did not impose an imperative legal obligation to distribute among the children. The wife took an absolute gift.
The earlier Victorian approach — which treated “I trust”, “I hope”, and “I desire” as automatically creating trusts — was repudiated. Lambe v Eames(1871) had already signalled this shift, holding that “to be disposed of in whatever way she may think best, for the benefit of herself and her family” did not create a trust.
Key principle from Re Adams
The court must read the whole will to determine whether the testator was imposing an obligation or merely expressing a hope. Precatory words alone — however strong — do not create a trust. Imperative intent must be shown by the instrument as a whole.
When Precatory Words Do Create a Trust: Comiskey v Bowring-Hanbury
In Comiskey v Bowring-Hanbury [1905] AC 84, the House of Lords found a trust on precatory language. The key was the second part of the clause: the testator gave his estate to his wife “in full confidence that she will make such use of it as I wish her to” but then added a direction that at the wife’s death it would pass to the nieces, with a default clause expressly dividing it among them if she made no other provision. The overall scheme was imperative — the second sentence imposed a binding disposition over the nieces’ entitlement.
This contrasts with Re Adams, where there was no such imperative second clause. The difference is whether the will, read as a whole, shows the testator intended to bind the recipient or merely to express a hope.
Drafting to Avoid Precatory Trust Disputes
- Absolute gift: “I give my estate to my wife absolutely.” Add nothing more. If you want to express a wish, do so in a separate, non-binding letter of wishes — never in the will itself.
- Express trust: “I give my estate to my wife to hold on trust for my children in equal shares.” Name the beneficiaries and the obligation clearly.
- Never mix: Do not give an absolute gift and then add “trusting she will provide for the children” — that combination invites a precatory trust argument and expensive litigation.
Frequently Asked Questions
What is a precatory trust in a will?
A precatory trust arises when a testator uses words of hope, desire, or confidence — 'I wish', 'I hope', 'I desire', 'I trust', 'I request', 'I recommend', 'in full confidence' — when purporting to give a gift to a person subject to some expectation about how that person will use it. Whether those words create a legally binding trust (a precatory trust) or merely express a moral hope depends on the whole context of the will. If the court finds a trust, the recipient is a trustee and must apply the property for the named purpose or person. If the words are merely precatory, the recipient takes an absolute gift and is free to use the property however they choose.
When do precatory words create a binding trust?
A precatory trust is only enforceable when the three certainties are satisfied on an objective reading of the whole will: (1) certainty of intention — the words must be imperative, not merely expressive of a wish; (2) certainty of subject matter — it must be clear what property is held on trust; (3) certainty of objects — the beneficiaries must be identifiable. In Comiskey v Bowring-Hanbury [1905], the House of Lords held that 'I give to my dear wife... in full confidence that she will make such use of it as I wish her to, and that at her death she will devise it to such one or more of my nieces as she may think fit, and in default of any disposition by her... I hereby direct that all my estate shall at her death be equally divided among... my nieces' did create a trust — the overall scheme of the gift was imperative even if individual phrases were precatory.
What happened in Re Adams and the Kensington Vestry [1884]?
In Re Adams and the Kensington Vestry [1884] 27 ChD 394, the testator gave all his estate to his wife 'in full confidence that she will do what is right as to the disposal thereof between my children, either in her lifetime or by will'. The Court of Appeal held that no trust was created. The words expressed a moral obligation and a confidence in the wife's judgment, but not a legally binding obligation to divide the estate among the children. The wife took an absolute gift and could dispose of the estate as she thought fit. The court applied the principle that precatory words used in a will should not be construed as creating a trust unless the whole instrument shows imperative, not merely hopeful, language.
How has the law on precatory trusts developed since the 19th century?
Before 1870 there was a long line of cases holding that 'I trust', 'I wish', 'I hope', 'I confidently request' automatically created binding trusts. That approach was reversed by Lambe v Eames (1871) LR 6 Ch App 597, where the Court of Appeal rejected the older cases and held that precatory words do not in themselves create a trust: each will must be read as a whole to determine whether imperative intention is shown. Re Adams and the Kensington Vestry [1884] confirmed this approach. The modern position is that only a clear imperative obligation — evidenced by the whole instrument — suffices to constitute a trust from precatory language. Courts look at: whether a precise subject matter is identified; whether an obligation to hold is expressed rather than merely hoped for; and whether a beneficiary is named with sufficient certainty.
What is the difference between a precatory trust and an absolute gift?
With an absolute gift, the recipient takes the property beneficially and can do as they please. With a precatory trust, the recipient is a trustee who must hold and apply the property for the benefit of the named beneficiary. The practical consequences are significant: (1) if it is an absolute gift, the recipient's creditors can reach the property; if it is a trust, they cannot (the property belongs to the beneficiary); (2) if the recipient dies with the property, an absolute gift forms part of their estate; a trust fund does not; (3) the trustee can be compelled to account if a precatory trust is found. Whether a precatory trust exists is determined objectively from the language of the will — the recipient's subjective belief that they held the property absolutely is irrelevant if a court finds imperative language.
How should a will be drafted to avoid accidental precatory trust disputes?
Use unambiguous language: either (a) give an outright absolute gift — 'I give my estate to my wife absolutely' — with no added expressions of hope; or (b) create an express trust — 'I give my estate to my wife to hold on trust for my children in equal shares'. Never add phrases like 'trusting she will provide for the children' or 'in full confidence he will make appropriate provision' to a gift you intend to be absolute — those phrases risk a precatory trust argument. If you want to express a wish without creating a binding obligation, use a separate letter of wishes addressed to the executor or trustee (not part of the will) that is clearly labelled as non-binding. Letters of wishes are routine in discretionary trust wills.
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