As Near as May Be: The Cy Pres Doctrine
November 7, 2019
The Third District Court of Appeal’s August 21, 2019 opinion in Reno v. Hurchalla, applied the cy pres doctrine from SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4th DCA 2011), reminding us again that a decedent’s intentions under this doctrine can be substituted by another plan which is believed to be as close to the original plan as possible if the original plan becomes impossible or impracticable of fulfillment.
Cy pres comes from the French language, meaning “as near as may be” and is codified in Fla. Stat. §736.0413.
It is a principle that equity will turn a general charitable intent of a settlor to a specific one. This comes up in cases where the institution or corporation has ceased to exist at the time of the testator’s death. Further, it will not apply when the actual provisions of the will can be carried out.
In SPCA Wildlife, the decedent, Ms. Ericson, executed a will that created a trust for her friend, Ms. Brown, and on Ms. Brown’s death, the trust’s remaining assets were to be distributed to the “International Wildlife Society.” However, the “International Wildlife Society” did not exist. Ms. Brown explained to the trial court that it was Ms. Ericson’s intent to have the trust’s assets go to an animal organization that would care for animals and which destruction of animals was only a last resort. When clarification of the trust was brought to the trial court, several charities were notified and given an opportunity to participate and respond. The SPCA Wildlife Center was one of them, who argued that the cy pres doctrine applied and it should be the one to receive the trust’s assets. The trial court disagreed, and ruled that the bequest was vague, that it failed, and that no charity was to get the trust assets. The trial court was reversed, and should have taken evidence from the various interested parties – i.e., organizations for the benefit of animals – to demonstrate why the cy pres doctrine would or should apply in their favor.
In the recent Reno opinion from the Third District Court of Appeal, the issue was not that the specified charitable donee did not exist, or that the document was unclear, but rather, that an alternative was necessary because the original intended plan was impracticable or impossible to achieve. Here, the decedent’s homestead was owned in her trust, and her brothers had predeceased her. The plan set forth that, in such an instance, the homestead was to be transferred to the University of Miami. Unfortunately, the University of Miami rejected the bequest.
Counsel in the trial court proceeding stipulated that the Reno trust language was unambiguous, and the trial court agreed with this. The trial court sided with the successor trustee, who had sought to effectuate the transfer of the property to another nonprofit charitable institution, Miami Dade College; the trial court agreed given the unique nature of the property, and the substitution under the cy pres doctrine was allowed.
On appeal, the Third District, affirmed the trial court. In so doing, the appellate court reiterated the cy pres principles, and because the property was still owned in the trust and similarly determined that the alternative charitable disposition was consistent with the charitable purposes intended when the original ones became impracticable or impossible to achieve.
If faced with a will or trust that includes provisions for the benefit of charities, including questions on the fulfillment of the bequest to the charities, you should speak with an experienced probate and trust lawyer who can appropriately advise you.