Johnson Jr., Limiting Dead Hand Control of Charitable Trusts: Expanding the Use of the Cy Pres Doctrine
, 21 U.
The cy pres doctrine
was born as a rule of construction employed by courts aiming to save testamentary charitable gifts that would otherwise fail by attempting to ascertain and give effect to the original intent of the testator.
(145) In addition, $2.75 million would be set aside for distribution to class members on a claims-made basis, and any remainder of this fund would be donated to "charities chosen by the parties and approved by the Court pursuant to the cy pres doctrine
using the cy pres doctrine
to guide the distribution of unclaimed class
Just as the holder of a conservation easement conveyed as a restricted charitable gift should not be permitted to use the merger doctrine to circumvent the cy pres doctrine
or the restriction on transfer, extinguishment, and division of proceeds provisions included in the easement deed to satisfy federal tax law requirements, (40) the holder in this example should not be permitted to use the merger doctrine to circumvent the termination requirements in the enabling statute.
Under the cy pres doctrine
, the courts can approve a charitable donation out of unclaimed class action funds, or a direct grant in lieu of damages to an organization that could vindicate class member rights in the future.
(60) In April 2007, the University filed a motion to amend its complaint and requested that the conditions of the charitable gifts be rewritten by way of the cy pres doctrine
. (61) The trial court granted the motion and found that the University had failed to establish two essentials required under the cy pres doctrine
: one, that the gifts were motivated by general charitable intent; and two, that the relief the University was seeking did not effectively approximate the original purpose and intent of the gift.
But there is a more mundane application of the cy pres doctrine
that should get most streetsmart managers' attention.
As this issue of the Journal goes to press, legislation that will codify the cy pres doctrine
in class action suits awaits governor Blagojevich's signature.
If the cy pres doctrine
is not followed by the court in a given situation (not all states recognize the cy pres doctrine
), the charitable estate tax deduction will not be allowed.
If the cy pres doctrine
works, it could be applied to many similarly problematic city names.
The Restatement provides guidance and rationale as to what courts may or may not regard as legitimate charitable purposes and what are appropriate applications of the cy pres doctrine