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Cy Pres


Abbreviated form of cy pres comme possible, French for "as near as possible." The name of a rule employed in the construction of such instruments as trusts and wills, by which the intention of the person who executes the instrument is effectuated as nearly as possible when circumstances make it impossible or illegal to give literal effect to the document.

Cy pres is applied in cases where the court concludes that, under the circumstances, the intent of the settlor who creates a trust or the testator who makes a will will not be contradicted by employing a flexible approach toward the application of the provisions of the document. Without cy pres, the intent of the settlor or testator will never be implemented because the document will be without any legal effect and not subject to enforcement by the court. In one case a settlor directed that his property be used as a home for retired clergymen, but the clergymen's wives were prohibited from residing there with them. This trust provision substantially reduced the number of applicants to the home. A court ordered the trustee, a person either appointed by the settlor or required by law to execute a trust, to ignore this provision under the doctrine of cy pres. However, a court does not have the power to alter a settlor's dis-positive provisions. For example, a trustee who is in charge of two charitable trusts cannot be authorized by a court to transfer funds from one charity to the other.

A court also has the power under the cy pres doctrine to order trust funds to be applied to a charitable purpose other than the one specifically named by a settlor when it was the settlor's intention to benefit charity in general and it has become impossible, inexpedient, or impractical to accomplish his or her specific purpose. Since a charitable trust can be perpetual, many become obsolete due to changing social, political, economic, or other conditions. A trust established in 1790 to combat yellow fever would, for example, be of little or no practical value now, since that disease has been virtually eradicated as a result of advances in medicine. When cy pres is applied, the court reasons that the settlor would have wanted his or her general charitable purposes implemented despite the changing conditions. In one case a testator provided for two trusts: the first to facilitate the end of slavery, and the second to assist runaway slaves. Shortly after the testator died, slavery was abolished, so the purposes of both trusts were completely outdated. A court reasoned that the testator intended the broad purpose of aiding African Americans, so the changes in the structure of society justified the court's application of funds of the trusts to purposes similar to those chosen by the testator. The first trust fund was applied to the education of former slaves in the South, and the second was used to assist impoverished blacks in the city where the testator had lived and granted preference to those who had previously escaped from slavery.

The cy pres doctrine can be applied only by a court, never by the trustees of a trust who must execute the terms of the trust. Trustees can, however, apply to the court for cy pres instructions when they believe the trust arrangement warrants it. A cy pres action is instituted by the trustees with the state attorney general as a party to the action, or the attorney general can initiate the suit. Once conditions are deemed suitable for the employment of cy pres, the court has broad discretion in the framing of a scheme for the application of the charitable fund to a purpose "as near as possible" to the one designated by the settlor. Some states authorize the living settlor to veto the application of cy pres to an irrevocable trust that he or she created.

The doctrine of cy pres is not employed where a settlor was concerned with only one specific charitable objective and it fails, or when the settlor provides that a gift be made to another upon failure of the charitable gift. When cy pres is not applied and the trust fails without any provision for the property to be given to another, there is a resulting trust for the settlor or his successors.

further readings

Menocal, Armando M. 1998. "Proposed Guidelines for Cy Pres Distribution." Judges Journal 37 (winter): 22.

Rudko, Frances Howell. 1998. "The Cy Pres Doctrine in the United States: From Extreme Reluctance to Affirmative Action." Cleveland State Law Review 46 (summer): 471–88.

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