Never Fear, Cy-pres is here

What Happens if a Charitable Gift in a Will Fails?

Just as the Title suggests cy-prés is here to save the day when it comes to charitable gifts. Where a charitable gift is made by a Will and the named recipient of the gift does not exist or no longer exists, then the executor or trustee must make a cy-prés application to the Court to have the gift applied ‘as close as possible’ to an organisation which fulfills the purpose of the gift. It is a matter for the court to determine which organisation should receive the gift. This is known as a Cy-prés Application.

What is a Cy-prés scheme?

Under s 105 of the Trusts Act, a charitable trust may be altered by the court through a cy-prés scheme where the original purposes of the trust, in whole or in part, cannot be carried out according to the directions given and to the spirit of the trust.
In order to be characterised as charitable, a purpose or trust must come within the spirit of the Charitable Uses Act 1601 (Imp.) and be for the public benefit. Charitable purposes are commonly categorised in one of four ways:

1. the relief of poverty;
2. the advancement of education;
3. the advancement of religion; or
4. other purposes beneficial to the community.

To apply the gifts under a cy-prés scheme, those charitable purposes must be general in nature and not specific. A particular charitable intention exists if the particular mode of performance designated by the donor is indispensable to the gift, or the gift cannot be given effect independently of it. The intention of a testator is primarily ascertained from the words of the Will.

What should I do if I want to leave a gift to a Charity in my Will?

To avoid the costs of your estate having to pay for the legal fees of a cy-pres application, if you are leaving a gift to a Charity you need to do your research.

1. Ensure that you have the full correct name of the charity;
2. Talk to the charity to ensure that the charity will take the gift with the conditions you wish to impose on it;
3. Check to see if the charity has its own clauses that they suggest you use;
4. Review your Will regularly to ensure that the charity is still operating and that you still wish to leave the charity provision from your Will; and
5. Obtain proper legal advice.

Getting your charitable gifts right in your Will now will ensure that unnecessary legal fees are not incurred in the administration of your estate.

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