Cy-près doctrine in English law

For charities worth under £5,000 and without land, the trustees (by a two-thirds majority) may decide to redirect the trust's funds.

Subsequent failure cases simply require redirecting the funds to the nearest possible purpose, as there's no question of allowing the settlor's next of kin to inherit the money.

However, initial failure cases require a decision not only on whether the purpose has failed, but also on whether the funds should be subject to cy-près or returned to the estate in a resulting trust.

[1] This doctrine originated in ecclesiastical law, the name coming as a contraction of the Norman French cy près comme possible (as close as possible),[2] It was originally justified in an ecclesiastical way; charitable gifts were provided to secure entry into heaven, and if the charitable gift failed, this would not be guaranteed.

The local bishop, therefore, would usually simply apply the gift to the nearest possible purpose to the testator's original goals.

Therefore, let an investigation be made to ascertain how the trust may be employed so that the memory of the deceased may be preserved in some other and lawful manner."

The courts instead simply determine whether or not the reason for failure falls within Section 13, based on the basic intention underlying the original gift.

This raises different questions, as it is a matter of deciding "has the original charitable gift failed, and, if it has, can the money be applied cy-près or must it go on resulting trust to the settlor's estate"?

This is something decided on the facts of each individual case, but some general principles are in place;[17] external evidence is admissible to override any prima facie interpretation that a gift is for non-charitable purposes, as in Re Satterthwaite's Will Trusts,[18] and charitable intention can be found in cases where a non-existent charity is the recipient of the settlor's gift, as in Re Harwood.