What distinguishes a precatory memorandum from a mandatory memorandum?

A precatory memorandum offers non-binding guidance, while a mandatory memorandum is binding. In the context of estate planning, a mandatory memorandum refers to directives that are intended to create enforceable obligations. These memoranda are typically employed to express the testator’s wishes in a definitive manner, intending for the instructions to be followed legally by the executor or others involved in the administration of the estate.

On the other hand, a precatory memorandum is typically viewed as a suggestion or expression of wishes rather than a legal requirement. Although it can guide how the testator wishes their estate to be distributed or managed, it does not carry the same enforceability as a mandatory memorandum. As such, recipients of a precatory memorandum may take the testator’s wishes into account but are not legally bound to follow them.

This understanding of the two types of memoranda is crucial in estate planning, as it underscores the importance of clear language and intent when drafting estate documents. It ensures that the intentions of the deceased are respected in legal proceedings while clarifying the limits of any guiding documents that are not meant to be binding.