At their death, people often want to continue to support those causes that were so special to them in life. However, despite a testator’s good intentions, there are times when it is impossible for their estate trustees to give a gift to the named charity. This might occur in situations where, before the gift vests, the charity has ceased to exist, never existed, been misnamed in the Will, or simply can’t be found.
The rule that applies to most gifts in a Will is that those which cannot be given effect will fail. In other words, the beneficiary will be out of luck. However, this is not necessarily the case with charitable bequests. Instead, the estate trustee has the option of applying to the court for advice and direction and asking it to determine whether what is referred to as the cy-pres doctrine will apply.
Under the cy-pres doctrine, the court will look for an intent that is exclusively charitable and if it is clear that the testator wished to devote property to charity then the court will substitute another charity to carry out as closely as possible the intentions of the testator.
Keep in mind that a mistake in recording the name of a charity will not necessarily require a cy-pres application. This is because, in the case of a misdescription, it’s not impossible to give effect to the gift and, generally speaking, the court will go to some effort to identify the charity the testator had in mind.
Have a great weekend!