Scope of the Doctrine of Cy Pres - Essay Example

The doctrine of cy-pres is a means by which a donation whose purposes are either unenforceable or impossible is channelled to the next, closest purpose for which the testator could have intended it. Through the doctrine, either the High Court or the Charity Commission can redirect funds or property to the ‘nearest possible purpose’. However, for charities below the £5,000 threshold, and where land does not feature as part of the package, the appointed trustees may re-channel the same through a two-thirds majority approval.
Basis and Scope of the Doctrine of Cy-pres
The doctrine is meant to offer legitimacy to the funds donated by a testator to a charitable organisation. In such cases, it is clear that the funds in question are not to be redirected to the next of kin of the deceased. However, certain circumstances may make it impossible to utilise the funds in the exact way required by the testator. This is when the entities mentioned above take charge and attempt to redirect the funds to the nearest possible purpose. The decision may result from initial failure (where the purpose of making a gift failed) or subsequent failure (where the charitable purpose for which it was intended has failed, despite the money being partly devoted to that lawful purpose).
Analysis
The present evaluation is based on the type of failure as explained in the preceding section. In the event the reported instance is an initial failure, the authorities (the High Court or the Charity Commission) need to establish whether the alternative, nearest possible options to utilise the funds reflect the existing social and economic realities. Established under Section 67 (subsection 3(c)), the Charities Act (2011) provides for the prior establishment of whether the available options are realistic in light of the socio-economic climate of the moment. The same is applicable when attempting to relocate funds to a different course after a subsequent failure of the initial trust. Enforcing this requirement appears difficult for cases of subsequent failure than those of initial failure. A charitable organisation attempting to invoke this subsection to legitimise the need for change from the initial purpose for which the funds were meant needs to make a concurrent submission on why the alternative that is alive to the socio-economic climate is also the nearest possible purpose. This is not the standard requirement for the case of initial failure. In the latter case, the important facts are whether it is possible to enforce the specified charity and whether the next available options are socio-economically realistic. Similarly, ascertaining that a charity as specified by the testator does not exist is relatively simpler in law. It only requires establishing the legality of the charity Read More