HomeESTATE PLANNINGA Probate, Will and the Cy Pres Doctrine

Oklahoma is a common law state that has adopted the cy pres doctrine. Cy pres is defined as a “doctrine that equity will, when a charity is originally or later becomes impossible, inexpedient, or impracticable of fulfillment, substitute another charitable object which is believed to approach the original purpose as closely as possible.” Shaw’s Estate, Matter of, 1980 OK CIV APP 59, 620 P.2d 483.

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Our legislature has codified the cy pres doctrine at 60 OS 602 as follows:

If a trust for charity is or becomes illegal or impossible or impracticable of fulfillment, or if a devise or bequest for charity, at the time it was intended to become effective, is illegal or impossible or impracticable of fulfillment and if the settlor or the testator manifested a general intention to devote the property to charity, any court of this state possessing general equitable jurisdiction, on the application of any trustee or of any interested party or of the Attorney General, may order an administration of the trust, devise, or bequest as nearly as possible to fulfill the general charitable intention of the settlor or testator.

What this means is that if the charity you designate no longer exists, the court can substitute a like kind charity in its place.

In Shaw’s Estate, the will of the decedent provided that after the payment of all the debts, expenses of the last illness, and the costs of probate estate administration the residue of the estate, including all real and personal property, was to pass to his sister if she survived him. In the event that his sister preceded the decedent in death, the residue of Shaw’s estate was devised and bequeathed to a charitable, educational, and benevolent corporation. His sister did die first. But the charity was not in existence at the time the will was executed, or at the time of the testator’s death. Subsequent to Shaw’s death, his attorney did file incorporation papers with the Secretary of State and the foundation was established as a non-profit corporation. A certificate of incorporation was then issued. Eventually the corporation obtained a tax exempt status in compliance with the Internal Revenue Service guidelines.Office Photos for web site 017

The heirs maybe saw dollar signs. They reasoned if the charity was not in existence when the will was signed and when he died, it can’t be fixed by later forming the charity. However the probate judge disagreed and distributed the estate to charity.

The Supreme Court upheld the probate judge based its decision on the cy pres doctrine and the language in the will. The will stated:

It is my intention that in the event my sister precedes me in death, that none of my estate shall go to any other relative or heir irrespective of their relationship to me, but in the event any individual should prove themselves to be an heir at law and entitled to any portion of my estate then and in such event, I give, devise and bequeath to each such individual or individuals the sum of One Dollar only, it being my intention and desire that if my sister does not survive me, that my entire estate should go to the above named foundation to be used for charitable, educational and benevolent purposes as set out in the By-Laws and Articles of Incorporation of said foundation to the memory of my sister and me.

I specifically direct that my attorney of Drumright, Oklahoma, if he be available to do so, shall be employed by my executor or executrix and that he shall handle any and all legal proceedings in connection with the Probate of this Will and all other legal proceedings re the handling of my said estate including all legal and management services in connection with the handling of the the charity.
The Supreme Court held: “we find that the will unambiguously shows an intent to benefit charity in general and the doctrine of cy pres should be applied to carry out the intent of the testator in keeping with the general rules of will construction.” And, “The testator’s attorney is granted power to handle the legal and management aspects of the foundation. It is of no importance under the circumstances here that the foundation came into legal existence after the testator’s death, because the foundation was merely a means of carrying out the express intent of the testator rather than a specific limited entity designated to take the bequest and devise to the exclusion of all others.”

The Supreme Court found that the will of the decedent trumped the heirs. While the probate court went out of its way to make this ruling, it does follow the intend of the decedent’s will. He didn’t want his heirs, except for his sister, to inherit anything. They didn’t.

Office Photos for web site 010Brent D. Coldiron is an experienced probate and living trust attorney. He knows what to do. He has over 39 years experience. Call Brent at (405) 478-5655.


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