cy-pres

Definition of cy-pres

Alternative forms

• cy pres
• cy près
• cy-près

Noun

cy pres (uncountable)

1. (law) In the law governing charitable trusts, the doctrine that a court may direct the funds of the trust to a best alternative, to be chosen when the original beneficiary is no longer a choice.

Further reading

Cy-près doctrine

The cy-près doctrine (pronounced /ˌsaɪˈpreɪ/, "sigh-PRAY") is a legal doctrine that first arose in common law courts of equity. The term can be translated (from old Norman French to English) as "as near as possible" or "as near as may be."[1] The doctrine originated in the law of charitable trusts, but has been applied in the context of class action settlements in the United States.[2]

When the original objective of the settlor or the testator became impossible, impracticable, or illegal to perform, the cy-près doctrine allows the court to amend the terms of the charitable trust as closely as possible to the original intention of the testator or settlor, to prevent the trust from failing.

A typical example would be a trust established to turn public opinion against slavery. Once slavery was abolished, the trust's stated purpose had become impossible to effect. The court will then modify the particular purpose of the trust, leaving it within the same general charitable purpose.

In Jackson v. Phillips,[3] the testator bequeathed to trustees money to be used to "create a public sentiment that will put an end to negro slavery in this country."[4] Thereafter, slavery was abolished by the Thirteenth Amendment to the United States Constitution. The funds were nevertheless applied cy-près to the "use of necessitous persons of African descent in the city of Boston and its vicinity."[5]

Application of cy-près in the UK

The cy-près doctrine applied in England and Wales and limited the strictness of the rules of mortmain under which property disposed of otherwise than to a legal heir was subject to forfeiture in certain circumstances. Following abolition of mortmain, the modern application of the cy-près doctrine has predominantly occurred in relation to charities as these are the most important trusts for a general purpose (not private benefit) permitted under English law.

The Charity Commission for England and Wales has the statutory power to apply the cy-près doctrine on behalf of a charity where, for example, no trustees remain in a charity or the necessary mandate cannot be agreed. These powers extend to a corporate charity or unincorporated association (which the common law rules may not cover). Similar powers apply to the equivalent bodies in Northern Ireland and Scotland. The cy-près doctrine will not be applied where a charity has alternative powers to redirect its funds under its constitution.

In jurisdictions which have retained the English cy-près doctrine but do not have an equivalent state body to the Charity Commission (or in relation to foreign charities' assets in the UK), charity trustees may seek the approval of the Court to their entry into cy-près arrangements to avoid later accusations of breach of trust.

References

1. Black's Law Dictionary, p. 349 (5th ed. 1979).
2. Theodore H. Frank (March 2008). "Cy Pres Settlements". Federalist Society Class Action Watch.
3. Jackson v. Phillips, (1867) 96 Mass. 539.
4. Jackson v. Phillips, (1867) 96 Mass. 539, 541.
5. Jackson v. Phillips, (1867) 96 Mass. 539, 597.