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 contra-
dicted 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 substan-
tially 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.
