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Cy-Près doctrine


Sometimes purposes for which the trust is set up cannot be achieved in the prescribed manner.  If it is a private trust and the objects are impossible, the trust will fail and there will be a resulting trust in favour of the settlor or his estate if he is dead.  On the other hand, if it is a public or charitable trust, even if it is initially impossible or it subsequently becomes so, in many cases the trust does not fail as a result of the Cy-Près doctrine.  Instead of allowing the trust to fail, the court will apply the doctrine of Cy-Près  (which means near to it) and apply the property to charitable objects as close as possible to the original trust.  The operation of the Cy-Près doctrine is by what are called schemes under Section 62 (g) of Cap 21. 

For Cy-Près  to operate, two conditions must be met:

1.            There must be a paramount or general intention of charity.  The donor must show a clear intention to pass on the property to charity instead of the usual beneficiaries.  This first rule is however not universal and applies only where the original trust fails ab initio.  If the trust subsequently becomes unattainable but was operational it will not fail because of the absence of a general charitable intention.  In such a case and also in the case of unidentified donors the funds will apply Cy-Près .  A general intention towards charity can be resisted if there is a contrary indication either express or implied under the Will or the Trust Deed.  Therefore if the gift is for a particular purpose only and that purpose fails, there is no room for the application of the Cy-Près  doctrine and the entire gift will fail.  Refer to the case of Re Wilson [1913]1 Ch. 314 – 320 . 

Cy-Près is an Anglo-Norman phrase which meant something as near as possible or near to it.  The doctrine of Cy-Près in charity law lays down that where property given on trust for charitable purposes cannot be used in the precise manner prescribed by the donor, the courts and also the charity commissioners in the UK may make a scheme for the application of the property to purposes resembling as closely as possible those originally intended by the donor.  The idea is not to frustrate the intention of the donor who in any case cannot be consulted where the gift is testamentary.

Initial Failure

In the case of Re Harwood [1936]Ch. 285 a gift had been made to the peace society in Belfast which society could not be shown to have ever existed.  The Judge found that there was a general intention to benefit societies aimed at promoting peace and the gift was therefore applied Cy-Près.  There was also a second gift in the Will to the Wisbech Peace Society which had once existed but had ceased to exist prior to the Testator’s death and this gift was held to have lapsed.  (Is promotion of peace Charitable?  Can the court determine whether a particular society that claims to promote peace is actually promoting peace? In the case of Re Satterwaite [1966]1 WLR 277 A Will listed a number of organizations concerned with animal welfare.  The list had been created carelessly from the London Telephone Directory and the testatrix chief concern was merely to divert her Estate to animal charities because she hated the entire human race.  One of the institutions named namely the London Animal Hospital had in fact never existed.  The Court of Appeal nevertheless held the gift to be applicable Cy-Près as a general intention could be discerned from the testatrix known attitude towards the human race. 

Note that if a body has ceased to exist by reason of amalgamation, with other charitable bodies a gift to the non-existent body will not fail and will be applied Cy-Près  to the amalgamated organization.  Refer to the case of Re Faraker [1902]2 Ch. 488

Another approach adopted by the court is to find that the gift was made for the purpose of the named charity rather than the body itself.  Refer to Re Finger’s Wales Trust [1972] Ch. 286 where gifts had been made to the National Radium Commission which was an unincorporated association and also to the National Council for Maternity and Child Welfare which was incorporated.  Both bodies had ceased to exist by the time of the testatrix’s death.  The gift to the Radium Commission was interpreted as a gift to its purposes and since this still continued, the gift did not fail.  The other gift would have failed as a gift to a corporate charity except that there was a general charitable intention and it could therefore also be applied Cy-Près .

In the case of Biscoe V. Jackson [1887] 35 Ch.D 460 money was to be applied towards the establishment of a Soup Kitchen in Shoreditch and a Cottage Hospital there.  It was not possible to apply the gift in the manner indicated.  The Court of Appeal held that there was sufficient general intention of charity for the benefit of the poor of Shoreditch to entitle the court to execute the trust Cy-Près .  It was decided in effect that the direction to establish a soup kitchen and a cottage hospital was only one means of benefiting the poor of Shoreditch whom there was a general intention of benefiting.

2.         The second condition for the application of the Cy-Près doctrine is that the trust has become impossible or impracticable to carry out or alternatively that a surplus has remained after carrying out the purpose.  It may be impossible because the beneficiaries no longer exist, cannot be identified or traced or because the property is generating no income where it is the income to be applied to the purpose or even because the funds are insufficient.  Impossibility has been interpreted very widely by the courts and for example in the case of Re Dominion, Students  Hall Trust [1947] Ch. 183 in which the charity in question was restricted to Dominion Students of European origin yet the objects were stated to be the promotion of a community of interests in the Empire.  An application was made to court to delete the words “of European Origin” and the Judge held that the retention of the words amounted to a colour-bar which would defeat the object of the charity and that the word ‘impossible’ should be construed widely and covered this case.  He allowed the deletion of the words.

Sometimes a trust generates surplus income so that the objects are achieved and there are leftover funds.  The Cy-Près doctrine will be applied to give the excess to similar charities or objects.  Refer to Re North Devon & West Somerset Relief Fund [1953] 1 WLR 1260 in which a surplus remained out of funds subscribed for the relief of the flood disaster at Lynmouth. 

A gift may also be impracticable for example where the funds are insufficient for the purpose.

 
 
 

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