Cy-près Doctrine: When the Charitable Organization Doesn’t Exist

Many people opt to leave a portion of their estate to charities or local projects in their will. Unfortunately, it’s equally common for people to neglect updating their wills to reflect changes in their lives and assets. This can lead to situations where a will donates funds to a charity that no longer exists. Despite this, the intent of the deceased is often clear due to the specific nature of charitable donations. Even if the named organization no longer exists, the intended use for the funds is usually evident. In such instances, the Cy-près Doctrine can be invoked. This allows courts to reinterpret the will, potentially redirecting the funds to a charity that aligns with the original intent.

Cy-près Doctrine Explained

This doctrine allows courts to change a donation in a will to reflect the intentions of the will writer when the original gift is no longer practical. The courts use the Cy-près doctrine to prevent the charitable gift from lapsing (failing) altogether. The Cy-près doctrine can be invoked when the executor starts a petition to be heard before the courts.

Usually, donations to a charity are made using the residue of an estate after all the beneficiaries have received their gifts. According to the Cy-près Doctrine, if a will provision indicates a charitable intent, the gift will not be considered intestate. Instead, courts identify an alternate organization with a similar purpose to receive the donation. If the charity doesn’t exist in any form, the gift would be distributed according to intestacy laws.

Charitable Intention

It can be unclear what “charitable intention” in a will entails. While there’s no specific definition by law, the courts are typically quite lenient with the definition. The courts are encouraging of charitable donations and will do whatever they can to ensure the gift is received. If there is evidence to assume there was charitable intent, the courts will apply the Cy-près doctrine.

A charitable intention is found if the named charity does not exist, but it’s clear the gift was for the purpose of a specific charity. For example, let’s say a will stated “with the residue of my estate, I will donate to ‘BC’s Charity for Breast Cancer’ to help find a cure for women who suffer from breast cancer.” The executor would find this problematic as there is no charity or organization with the name “BC’s Charity for Breast Cancer.” The courts would be able to use this gift for a different organization with the same purpose because there is a clear charitable intent.

An Example From Case Law

In a difficult court case in BC, Bentley v. Anglican Synod of the Diocese of New Westminster (2010), the will writer’s charitable gift to her church’s building fund was unable to be applied. The court found the will writer’s intention was to use the funds for the building needs of the Chinese community. If the funds were put into a trust as described in her will, they would remain stagnant. It was impractical to do this and the judge found it appropriate to enact the Cy-près doctrine.  The judge proposed creating a trust where the funds would be used for the building needs described in the will.

In any case, the courts strive to interpret wills in the way that the will writer had intended, even if that means modifying the will in some way. The courts are not hesitant to invoke the Cy-près doctrine to ensure that the correct organization is given the donation.

If you’re an executor who is unsure what to do in the case of a non-existant charity being named in the will, contact an experienced estate lawyer today. We will help you to administer the estate, ensuring the will writer’s final intentions are respected.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.