Isle of Man: The Cy-pres Doctrine

The doctrine of cy-pres is a general rule that when literal compliance with the terms of a will or trust is impossible, the intention of a donor or testator should be carried out as nearly as possible. When a gift is made by will or trust (usually for charitable or educational purposes), and the named recipient of the gift does not exist, has dissolved, or no longer conducts the activity for which the gift is made, then the estate or trustee must make the gift to an organisation which comes closest to fulfilling the purpose of the gift.

In the recent case of Philip Bradshaw Games (as administrator (trustee) of the Estate of the late Donald Collister) v Manx National Heritage (Manx Museum & National Trust) CHP 2001/61 the Isle of Man High Court of Justice considered using this doctrine in the construction of a will. Reference was made by the High Court to the Privy Council's decision in Mayor of Lyons v AG of Bengal (1875-76) LR 1 App Cas 91.

The Claimant in this case was the administrator of an estate. The assistance of the Court was sought on a gift in the testator's will for the development of a heritage centre and museum on a field left by the testator for this purpose. The relevant clauses of the will read as follows:

8. "I GIVE and DEVISE my field at the bottom of the Estate at Ballastrooan and numbered 1358 on the Ordnance Survey Plan of the Isle of Man...unto my Trustees UPON TRUST to erect a Heritage Hall and museum on the said field and that all my personal property of historical significance with particular regard to Manx Heritage should be displayed in the Heritage Hall and Museum for the benefit of the people of the Isle of Man and Visitors to the Isle of Man."

9. As to the rest ... of my Estate both real and personal I GIVE DEVISE and BEQUEATH the same to my Trustees UPON TRUST to call in administer and ... to sell the same and to transfer pay or apply my remaining property and the proceeds of sale of any such property as shall have been sold:-

(a) as to so much thereof as shall be necessary to meet all the costs of planning and building a Heritage Centre and Museum to be called "The Collister Heritage Centre and Museum" and
(b) as to the balance thereof TO HOLD the funds remaining UPON TRUST to apply the capital and income thereof for and towards

(i) the cost of maintenance and upkeep of Colby Croft aforesaid and

(ii) the cost of maintenance and upkeep of the Heritage Centre and Museum and its surrounding land aforesaid...

15. Should there be insufficient funds to construct and maintain the Collister Heritage Centre and Museum aforesaid after the rest residue and remainder of my Estate both real and personal wheresoever situate and of whatsoever kind of or to which I shall be seized possessed or entitled at the date of my death or over which I shall have any power or testamentary disposition whatsoever after payment thereout my just debts funeral and testamentary expenses have been called in sold or transferred then and in such case I LEAVE DEVISE and APPOINT my residuary estate unto my Trustees UPON TRUST to pay the capital and income thereof to the Trustees of the Manx Museum and National Trust absolutely subject to them paying thereout the cost of maintenance and upkeep of Colby Croft aforesaid absolutely."

The Court considered the following issues: -

(a) whether to give directions as to the extent, if any, of the steps the Claimant should pursue to obtain planning permission to build the heritage centre and museum on Field 1358;

(b) if no further steps were needed to pursue planning permission, whether the gift in clause 8 failed;

(c) if the gift in clause 8 failed, whether the gift of residue set out in clause 9 also failed;

(d) if the gift in clause 9 did not fail, whether the residue could be used by the Claimant as trustee in pursuing the erection and maintenance of the heritage centre and museum in partnership with the Commissioners;

(e) if the gift of residue in clause 9 failed, whether the alternative contingent gift of residue in clause 15 failed due to the non-satisfaction of any condition precedent contained in that clause; and

(f) if either clause 9 or clause 15 failed such that there was potentially a partial intestacy, whether the doctrine of cy-pres could be applied through the operation of section 3(1) of the Charities Act 1962 to save either gift so as to apply the funds to another charitable purpose.

The Court considered a number of authorities on the construction of wills. Each case turns on its particular facts and construction of the terms of the will in the circumstances existing. The question is not what the testator meant to do when he made the will, but what the written words he used mean in the particular case. The Court highlighted that where there is uncertainty, which may lead to intestacy, a presumption exists against intestacy.

Applying these tenets of construction, the Court held that the gifts relating to the museum and heritage centre as a whole were impractical and impossible for the following reasons: -

(a) planning permission for the heritage centre and museum would not have been provided as Field 1358 was situated in an area of residential housing and the grant would result in the loss of usable housing contrary to planning policy;

(b) in light of this, the object of the gift in clause 8 was impossible as the property could not be used for the intended purpose;

(c) as clause 9 related to the heritage centre to be created by clause 8, clause 9 could not be read separately; and

(d) clause 15 failed for one of the following reasons:

a. clause 15 included a restrictive precondition which meant the validity of the gift in clause 15 was dependent on the earlier gift not failing; or
b. if there was no restrictive precondition, the gift nevertheless failed as there were insufficient funds to maintain the heritage centre in the long term.

Having decided that the gifts in the will failed, the Court considered whether the purpose of the gifts could be amended cy-pres in order to save the gifts. The doctrine of cy-pres is set out in section 3 of the Charities Act 1962:

"(1) Subject to subsection (2) below, the circumstance in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy-près shall be as follows:-

(a) where the original purposes, in whole or in part,-... (ii) cannot be carried out, or not according to the directions given and to the spirit of the gift;

(2) Subsection (1) above shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près , except in so far as those conditions require a failure of the original purposes.

(3) References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable."

The Court highlighted the distinction between a general charitable intention and a specific charitable intention. A general charitable intention exists where the testator wishes to effect some charitable purpose which the Court can find a method of putting into operation, notwithstanding that it is impracticable to give effect to some direction by the testator which is not an essential part of his true intention. In contrast, a specific charitable intention exists where the testator means his charitable disposition to take effect if, but only if, it can be carried into effect in a particular and specified way. The doctrine of cy-pres cannot apply in the latter case.

Considering the particular facts of the case, the Court applied the Privy Council decision in Mayor of Lyons v AG of Bengal which held that the doctrine of cy-pres must be applied to a gift without regard to the other charitable gifts in the same instrument. A gift may therefore be saved regardless of the fact that the residue is nevertheless directed to charity. The question is whether it is possible to impute to the testator a mere general charitable intention behind the gift which enables the gift to be given effect in an alternative way.

Refusing to apply the property cy-pres, the Court held that there was a clear direction in this case that if the gifts failed, the property should pass as residue; there was a specific charitable intention. The testator had determined to give to charity in his own way such that there was no general charitable purpose behind the gifts that could be amended cy-pres.

This case highlights the need for wills to be drafted carefully and precisely and for individuals to seek appropriate legal advice to ensure their wishes will be carried out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.