Confusing Cy Près

81 Pages Posted: 28 Dec 2023 Last revised: 20 Apr 2024

See all articles by CJ Ryan

CJ Ryan

Indiana University Maurer School of Law; American Bar Foundation

Date Written: November 29, 2023

Abstract

American courts have increasingly considered the possibility of prolonging the life of charitable trusts through cy près and the closely related doctrine of equitable deviation. This requires courts to interpret the material purposes of trusts and even the administrative terms on which settlors of charitable trusts condition gifts in trust made for public benefit. Yet, the implicit reasons why courts might invoke cy près to change a charitable trust’s material purpose have not been explored in significant depth heretofore—and neither has a common but vexing trend of courts conflating cy près with deviation, which negatively impacts charitable trust-making.

I analyze the extent to which judges have struggled with applying these remedies via an empirical analysis of a universe of cases receiving a published opinion from an American court from the nation’s founding through 2019. This study provides an original analysis of the cy près doctrine, including its use and misuse, along an extended timeline in American history. The study’s novel contributions are twofold. First, it teases out the distinction between cy près and like equitable doctrines. In doing so, it elucidates how courts confuse cy près with other equitable remedies. Second, it discusses the sources of the confusion around the cy près and deviation doctrines by empirically testing the factors that bear on a court’s decision to employ them accurately or inaccurately. These findings have implications not only for resolving the boundaries of the cy près doctrine, while encouraging charitable trust-making, but also for defining the critical role that judges play in shaping both the cy près doctrine and trust settlors’ expectations in the past, in the present, and for the future.

Keywords: cy près, equitable deviation, Uniform Trust Code, judicial decision making

JEL Classification: K11, K19, K29, K39

Suggested Citation

Ryan, Christopher, Confusing Cy Près (November 29, 2023). Georgia Law Review, Vol. 58, 17-96 (2023), Indiana Legal Studies Research Paper No. 519, Available at SSRN: https://ssrn.com/abstract=4648263

Christopher Ryan (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
4th Floor
Chicago, IL 60611
United States

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