The document discusses the legal doctrine of cy-près, which allows charitable funds to be applied to similar charitable purposes if the original purpose becomes impossible, impracticable, or illegal to carry out. It provides background on the meaning and origins of cy-près, examines its application in cases of initial failure or subsequent failure of a charity. It also notes that while England has express cy-près laws, Malaysia does not, but courts still apply the doctrine depending on the width of the charitable intent established.

1. Dr. Zuraidah Ali 1
CY- PRES

2. Dr. Zuraidah Ali 2
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

3. Dr. Zuraidah Ali 3
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.

4. Dr. Zuraidah Ali 4
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

5. Dr. Zuraidah Ali 5
 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. 191
Ttrix 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.

16. Dr. Zuraidah Ali 16
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