A prayer for cy-près

What happens when a well-intentioned philanthropist has outlived or misnamed the charity they intended to benefit on their death? Funds a testator has earmarked for a particular philanthropic purpose or organization cannot always be used as they were intended. When this happens, the trustee can apply to the court for relief under the cy-près doctrine to modify the terms of the relevant trust and preserve the testator’s intentions to the greatest extent possible.

Cy-près is an equitable remedy which falls under the court’s inherent jurisdiction to supervise charities and trusts. The purpose of the doctrine is to ensure that charitable objects are not frustrated by a trust’s administrative provisions.[1] Before it may apply a cy-près scheme the court must find both:

1) the existence of a general charitable intent; and

2) that the purposes of the trust is impossible or impractical to fulfil.[2]

1) General Charitable Intent

Establishing general charitable intent is fact specific. The donor must have had a paramount or overriding desire to dedicate the trust property to a general charitable purpose; where a specific gift was intended, it cannot be saved by the cy-près doctrine. The gift will fail and devolve into the residue of the estate.

The court differentiates between impossibilities or impracticalities that are initial and those that are supervening. The latter does not require the applicant to lead evidence of exclusive dedication of the trust property to charity.[3] Where there is a supervening impossibility or impracticability, the first branch of the test can be dispensed with and the court can turn directly to the second branch.

2) Impossibility or Impracticability

The second branch of the test requires a finding that the performance of the trust as originally contemplated is no longer practicable. “Absolute impracticability” is not required to establish the second branch of the test.[4] The applicant must show that the purposes of the trust are impractical to achieve, which is a fact-driven analysis.

The doctrine of cy-près can be used to correct impossible/impractical situations such as:

• a misnomer of the charitable entity in a Last Will and Testament or trust deed;
• a charity named in the Last Will and Testament or trust deed has dissolved into another (a mere name change may be resolved by finding that the current entity is a successor to that named in the document);
• the funds dedicated toward the intended purpose of the trust far outweigh the amount actually needed to achieve the purpose (see, for example, Roman Catholic Bishop of Bathurst v. New Brunswick where the court applied a cy-près scheme to make alternate use of funds intended to train candidates for the priesthood[5]); and
• the specific purpose for the funds has already been achieved (i.e. where the deceased bequeathed funds to build a new community centre in their hometown, but one was funded and built shortly before their death).

Conclusion

Where the test has been met, the court can flex its inherent jurisdiction to supervise the administration of trusts and devise a scheme to give effect to the testator’s intentions.[6] Where there was a misnomer in the trust or testamentary documents, the court can direct the funds to the appropriate charity. If the charity named in the testamentary documents never existed or has ceased to exist, the court may apply the trust funds to an alternative charity whose objects are as near as possible to the original intended recipient.

Courts are loath to allow charitable gifts to lapse. The use of the powerful cy-près doctrine allows the court to save gifts that would otherwise fail for lack of certainty.

[1] The Sidney and North Saanich Memorial Park Society v British Columbia (Attorney General, 2016 BCSC 589 at para 51.

[2] Christ Church v Canada Permanent Trust Co, [1984] 18 ETR 150 at paras 11, 12 and 14.

[3] Lapointe v Ontario (Public Trustee) (1993), 1 ETR (2d) 203 (Ont Gen Div) at para 17; Fidelity Trust Co v St Joseph’s Vocational School of Winnipeg, 1984 CarswellMan 113 (QB) at paras 19, 30 and 34.

[4] Re: Stillman Estate, [2003] OJ No 5381 (SCJ) at para 15.

[5] 2010 NBBR 400 (NB QB).

[6] Re: Stillman Estate, [2003] OJ No 5381 (SCJ) at paras 3 and 15.