If you don’t like dog puns, you might want to stop reading now.

Hotelier and real estate magnate Leona Helmsley loved dogs and she made no bones about it. Leona Helmsley left $12 million in her will in trust for her dog, Trouble. And, although Surrogate Renee Roth reduced the trust to $2 million, that amount should still be sufficient for Trouble to live, well, a dog’s life for her remaining years. (After all, Trouble’s annual living expenses have been estimated at only $180,000.)

The amount of the Trouble Trust, however, pales in comparison to the full amount of the charitable trust Mrs. Helmsley created — valued at between $5 billion and $8 billion. In a two page “mission statement,” Mrs. Helmsley expressed her desire that the money be used for the care and welfare of dogs. (Actually, it has been reported that she initially stated that the money should go to poor people and dogs, but she later turned tail on poor people, dropping them from the list.)


But are Mrs. Helmsley’s trustees required to honor her desire? Can they help the poor and still avoid the doghouse? Probably. It is likely that the expression of intent contained in the mission statement will be viewed as mere precatory language, not a legally binding directive. And, besides, the document reportedly gives the trustees discretion in distributing the money. So the trustees likely won’t have their tails between their legs if they decide to throw a bone to some underprivileged humans.

Precatory language contained in a will or other instrument is merely an expression of the testator’s or grantor’s wishes or desires; it is not legally binding on the person to whom the wish or desire is directed (see In re Samuelson, 110 AD2d 183, 187 [2d Dept 1985]).  Whether a provision in a will or trust is mandatory or precatory depends on the language of the provision and the intent of the testator or grantor.

As explained in a leading New York treatise:

Normally words of wish or desire do not create an imperative charge nor limit a gift otherwise provided for in the will. In the absence of a clear expression that the testator intended the language to be dispositive, words indicating a wish or desire or request are ordinarily only words of entreaty that leave obedience, exercise, and performance to the sense of duty, gratitude, and discretion of the one to whom they are addressed. Such person can carry out the admonition of the testator or not as he sees fit. The court has no control over such person’s actions and may not substitute its judgment for that of the person to whom such words are addressed.

11 Warren’s Heaton on Surrogate’s Court Practice § 187.02 (2005).

Courts in New York have recognized that although words such as “request,” “wish,” and “desire” are ordinarily construed as precatory, “they will be taken to connote a hope or command depending on whether the author meant by them simply to advise or inform a discretion which is vested in somebody or to control or direct a certain disposition” (Spencer v Childs, 1 NY2d 103, 107, [1956]).

The frequency with which Mrs. Helmsley used action verbs in her will might give her trustees a “leg up” in determining which provisions are mandatory directives and which are not. Cases from jurisdictions other than New York have concluded that when certain provisions of a will use mandatory language and others use traditionally precatory language, the distinction should be given significance in interpreting the will. In other words, where a testator uses a command verb in one part of his will — for example, “I direct” — and a permissive verb in another part — for example, “I request” — the permissive clause should be considered merely precatory (see Diana v Bentsen, 677 So 2d 1374, 1378 [Fla Dist Ct App 1996]; O’Brien v McCarthy, 285 F 917, 920 [DC Cir 1922]).

It should come as no surprise to anyone that Mrs. Helmsley was not shy about using command verbs. For example, in her will, Mrs. Helmsley “directed” that her mausoleum be acid washed or steam cleaned at least annually. She also “directed” that, upon Trouble’s death, her remains were to be buried next to Mrs. Helmsley’s remains, in her (presumably freshly acid washed or steam cleaned) mausoleum. And, she conditioned bequests to two of her grandchildren upon their visiting their father’s grave at least once a year — preferably on the anniversary of his death (hint, hint — “preferably” = precatory language) — and directed her trustees to install a guest book inside the family mausoleum in order to enforce the visitation requirement.

While it is sometimes difficult to determine what is and what is not a mandatory directive, in the case of Mrs. Helmsley’s trust, it should not be all that difficult for the Trustees to sniff out the precatory language.