cy-près doctrine
Common law
In common law jurisdictions the cy-près doctrine (pronounced as "sigh-PRAY") is a legal doctrine of Courts of equity. The term can be translated (from French to English) as "as near as possible" or "as near as may be."[1]
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.[2], 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."[3]. 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."[4]
Model Code
In the United States there is a Uniform Trust Code ("UTC"), which is a model code that various jurisdictions (e.g. States) may adopt by statute.
The UTC codifies that cy-près applies only to charitable trusts where the original particular purpose of the trust has become impossible or impracticable, and the terms of the trust do not specify what is to happen in such a situation.
The UTC provides, in part, that "if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful ... the court may apply cy-près to modify or terminate the trust ... in a manner consistent with the settlor’s charitable purposes."[5]
However, the UTC further provides that the court may not apply cy-près where "[a] provision in the terms of a charitable trust ... would result in distribution of the trust property to a noncharitable beneficiary" and also that cy-près may not be used to violate the rule against perpetuities.[6]
The UTC also contains a a cy-près rule for noncharitable trusts. It provides that "[t]he court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust."[7] This power over trusts other than noncharitable trusts is not found in English law, or in most common law jurisdictions outside the United States.[citation needed]
References
- ^ Black's Law Dictionary, p. 349 (5th ed. 1979).
- ^ Jackson v. Phillips, (1867) 96 Mass. 539.
- ^ Jackson v. Phillips, (1867) 96 Mass. 539, 541.
- ^ Jackson v. Phillips, (1867) 96 Mass. 539, 597.
- ^ Section 413(a) of the Uniform Trust Code.
- ^ Section 413(b) of the Uniform Trust Code.
- ^ Section 412 of the Uniform Trust Code.
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