How to protect your community’s legacy 

by Jackie Jacobs

Cy Pres is a legal precedent governing the disposition of assets when a charity is dissolved, or if for some reason, donative intent can’t be honored. Perhaps the need no longer exists. In such cases, the next closest related use must be identified.  

Authors Georgia Lockhart, Austin Darlin, and Darren Williams cite the following scenario in a January 2023 article entitled Cy-près Doctrine: When the Charitable Organization Doesn’t Exist: “A charitable intention is found if the named charity does not exist, but it’s clear the gift was for the purpose of a specific charity. For example, let’s say a will stated “with the residue of my estate, I will donate to ‘BC’s Charity for Breast Cancer’ to help find a cure for women who suffer from breast cancer.’ The executor would find this problematic as there is no charity or organization with the name ‘BC’s Charity for Breast Cancer.’ The courts would be able to use this gift for a different organization with the same purpose because there is a clear charitable intent.” 

Lawyer Joseph Brennan writes in a similar vein of thought in an October 2024 piece entitled Reforming Religious and Charitable Trusts Through Cy Pres. “Sometimes the generous purposes for which a trust is created are no longer possible or practical. For instance, a testamentary trust may be created to support a particular congregation but as is often the case, however, that congregation may eventually close or merge with another church. When that happens, trustees are often placed in difficult situations as they may no longer be able to effectively carry out their fiduciary duties. Thankfully, trustees and churches are not left without recourse in this situation—enter the doctrine of Cy Pres, which takes its name from the French phrase “cy près comme possible” meaning “as near as possible.”  “…[G]enerally, courts will do what they can to ensure that a trust will not fail for lack of a valid purpose. 

Courts may therefore apply the doctrine of Cy Pres assuming certain conditions have been met (for example, if it can be established that it is impossible or impractical to honor the originally stated purpose of gift, and/or there exists an alternative “general” charitable intent.) Modern courts appear to be flexible in their application of the doctrine and have loosened their interpretation of these conditions. Once Cy Pres is deemed appropriate, courts will allow modifications to a purpose that closely approximates the original intent.”

For charitable entities possessing funds for purposes that may be obsolete, modification through the application of Cy Pres can be an effective way to ensure that generous gifts for religious or charitable purposes do not go to waste. 

The mission of the Jewish Community Legacy Project is to assist transitioning small congregations with assets that must be repurposed for uses not exactly consistent with donative intent. Helping such congregations use assets “as near as possible” to the original charitable intent is a key outcome of JCLP-Synagogue partnerships– and a huge benefit of the trusting relationships that our professional staff and board members develop with communities throughout North America.