cy pres
TRANSCRIPT
Dr. Zuraidah Ali 1
CY- PRES
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The Students will be able to
Restate the concept of Cy-près Apply the doctrine of Cy-près Solve and relate the doctrine of Cy-
près to the present circumstances
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MEANING derived from Norman-French term :‘ici-pres’
which means ‘near this’ ‘aussi pres’ : as near as possible The courts are willing for the funds to be
applied to other objects which are as near as possible to the settlor’s intention.
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The Law In England there is an express
provision on Cy-près under the Charity Act 1993, ss13(1) & 13(2)
In Malaysia-there is no provision on Charity neither on Cy-près
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Depends very much of the width of the charitable intent
Divided into two: 1) Initial Failure 2) Subsequent Failure /Supervening
impossibility
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Initial Failure Property is given to charity which ceases to exist at
the date the gift takes effect. The charitable organisation existed at the when the
gift was made but ceased on the date it is to be executed.
Eg : A make a will to give RM1million to XXX charity in 1995 . A died in 2002. XXX charity ceased in 2000.
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1)Width of charitable intent Where a charitable trust fails as being
effective on the date of the gift, the gift will lapse of the property will apply cy pres
Only if the court finds a wider intent, cy pres will be applicable.
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RE RYMER [1984] 1 Ch 143 A legacy to the rector for the time being of ST
Thomas Seminary for the education of the price for the diocese of Westminister.
When the testator died the Seminary ceased to exist and students has been transferred to another seminary in Birmingham
Held : Gift failed
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Buckley J : The task of the court : to consider whether it was an essential part of the testator’s intention that his benefaction should be carried into effect in all respects in the particular manner indicated and no other OR
Whether his true intention was to make a gift for charitable purposes without qualification
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In only the latter case ‘ the court will, if it carry the testator’s true intention into effect in some way cy pres.. and in so doing the court is not departing from the testator’s intention but giving effect to his true paramount intention.
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Where there was a gift for non-existent charity, it was easier to find the charitable intent in a case where the institution had never existed than it was in the case where the identifiable institution had ceased to exist
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IN Re Lysaght [1966] Ch. 191Ttrix gave fund to the RCS to found some medical studentships with some restriction.The RCS refused to accept the gift and such refusal will caused the gift to fail.Ct There was a paramount intention.
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Re Valibhoy Charitable Trust [1975] 1 MLJ 187
The testator left 1/3 of his net estate on trust for education purposes to be performed in India.
It was impracticable to administer the trusts for lack of funds and through uncoorperative attitude of the relevant authorities in Gujerat State.
Held : The will indicated an intention
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b) Defunct or non existent charity 1) Re Harwood (1936) Ch 285 A testatrix died in 1934. Left £200 to the Wisbech
Peace Society and £300 to the Peace Society in Belfast.
Wisbech Society had existed prior to 1934 but ceased by the date to exist.
No evidence that the Peace Society of Belfast had ever existed.
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Re Satterwaithe’s Will Trust [1966] 1 WLR 277.
The testatrix left all her estate in equal shares to nine named animal societies which she had selected randomly from a telephone directory. One of the societies was the “London Animal Hospital” which did not exist but a veterinary surgeon had once practised under this name.
Held : Cy-pres could be applied.
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c) Continuation of Charity in Another Form
Re Faraker (1912) 2 CH 48 A gift to Mrs Bayley’s Charity Rotherhithe. A number of local charities had been
consolidated under a scheme by the Charity Commission in 1905 and funds were held in various trusts for the benefit of the poor in Rotherhithe.
COA : the Bayly trusts had not been destroyed by the scheme and that the consolidated charities were entitled to the legacy.
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Subsequent Failure/ Supervening impossibility
Once charity is established, it is not allowed to failed
Width of charitable intent is irrelevant. What is important is that the property has
been given “out and out” to charity
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Cases Re Wright [1954] Ch 347 A testatrix who died in 1933 provided, on the death
of a tenant for life, for the foundation of a convalescent home for impecunious gentlewoman.
The scheme was not practicable on the death i,.e 1942 but it was in 1933.
Held : 1933 was the crucial date. Cy-pres was available in 1942 irrespective of width of charitable intent.
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Malaysian Cases TAI KIEN LUING V TYE POH SUN & ORS[1961] 1
MLJ 78 SIR HAN HOE LIM V LIM KIM SENG & ANOR [1956] 1 MLJ 142