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Copyright (c) 2007 Wisconsin Women's Law Journal
Wisconsin Women's Law Journal

ARTICLE: HE SAYS, SHE ASKS: GENDER, LANGUAGE, AND THE LAW OF PRECATORY WORDS IN WILLS

Spring, 2007

22 Wis. Women's L.J. 1

Author

Alyssa A. DiRusso 1

Excerpt



I. Introduction
 
Would trust law fail Marilyn Monroe?

On August 5, 1962, Marilyn Monroe (born Norma Jeane Baker) died leaving a valid will. 3 Her will was probated in New York and was admitted for ancillary proceedings in California in January of 1963. 4 Marilyn's will provided for certain friends and family members and included a demurely worded bequest to Lee Strasberg, her acting coach and close companion. 5 Marilyn directed in her will that Strasberg was to receive her personal effects and clothing, as well as the residue of her estate, "or if he should predecease me, then to my Executor hereinafter named, it being my desire that he distribute these, in his sole discretion, among my friends, colleagues[,] and those to whom I am devoted." 6

Marilyn's words, although expressive and thoughtful, are in all likelihood legally impotent. Marilyn's "desire" regarding the distribution of her personal effects is manifestly uncertain to be enforced under standard tenets of trust law. 7 An individual can create a legally enforceable trust where there is a separation of legal and equitable interests, 8 ascertainable beneficiaries, 9 a trust res, 10 and intent to create a trust. 11 A person's language is often judged to show lack of intent - meaning that no trust is created - when he or she uses "precatory language": words of preference or guidance rather than explicit direction. 12 When a donor uses precatory language falling short of binding words that create a trust, the recipient ...
 
 
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