Nassau County New York Surrogate John Riordan’s decision in Matter of Biondo (New York Law Journal, April 6th , 2006 reported at page 20) provides an excellent explanation and application of the doctrine of cy pres (pronounced “sigh-pray”). Originally part of our common law, cy pres is one of those concepts taught in law school which (like the joke about the roof) generally passes right over the head of the average law student and continues right into oblivion until some future point where it has to be relearned.

Cy pres is codified in section 8-1.1 of New York’s Estates , Powers and Trusts Law which provides, in part that :

“No disposition of property for religious, educational or benevolent purposes otherwise valid under the laws of this state, is invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries.”

The doctrine of cy pres is the remedy for a situation where a will improperly misstates the name of a charity for a bequest or names a charity which is no longer in existence at the time the testator dies. Basically , the law allows the will to be, in effect, corrected to permit the substitution of the beneficiary actually intended but improperly named. Additionally, the law enables the surrogate to select a successor beneficiary similar to an organization which is no longer in operation at the time the will is probated.

Biondo involved a certificate of deposit purchased by a New York decedent, Barbara Bottjer prior to her death. The CD indicated that it was a “trust account” and named the “National Paralysis Foundation” as its beneficiary. A search conducted by her executor found that the only entity with those words in its name was the “Kent Waldrep National Paralysis Foundation” , a Texas charity which was dissolved in 2003. The articles of dissolution of the charity provided that its assets were to be distributed to the “Kent Waldrep Fund for Clinical Research for Spinal Cord Research”. The surrogate determined that the selection of this successor charity as the appropriate recipient of the funds in the certificate purchased by the decedent would effectuate her charitable intent.