In Confusing Cy Près, Christopher J. Ryan, Jr. examines judicial decision-making in cases involving proposed modifications to charitable trusts. Two doctrines permit modification: equitable deviation and cy près. Ryan uses a comprehensive data set—over 1,300 cases between the years of 1820 and 2019—to explore when courts are likely to apply the doctrines and, critically, when courts confuse them. His research reveals that courts routinely use equitable deviation when they should use cy près and, tantalizingly, suggests that the Uniform Trust Code is at least partially responsible. Ryan’s empirical work also sheds light on when courts are most likely to modify charitable trusts.
Doctrinally, equitable deviation and cy près are straightforward. Equitable deviation allows a court to modify the administrative terms of a trust—what Ryan describes as “the little details of how [the trust] is run and controlled.” (P. 30.) Cy près allows a court to modify “the dispositive and material terms of the trust (i.e., the purpose of the trust, the charitable cause the trust addresses, and the delivery of the trust assets to the intended beneficiaries).” (P. 30.) Both doctrines require a change in circumstances that negatively affects the trust. For equitable deviation, the change in circumstances must impair the functioning of the trust in a way that threatens the trust’s very purpose. For cy près, the change in circumstances must make the trust’s specific purpose impracticable, impossible, or illegal, and the settlor must have manifested a charitable intent that is more general than the specific purpose that has become unsustainable.
Ryan’s central empirical inquiry is whether, from a doctrinal perspective, courts are correctly applying the doctrine—that is, whether courts are using equitable deviation to modify administrative terms and cy près to modify dispositive terms. (P. 51.) Modifying dispositive terms is much more significant than modifying administrative terms. When a court modifies the administrative terms of a trust (like, for example, the list of permitted investments), the modification furthers the trust’s purpose as articulated by the settlor. But dispositive terms are usually directly relevant to a trust’s raison d’être, so any modification supplants the trust’s specific purpose and replaces it with something new, thereby threatening dead hand control. Ryan’s concern is that if courts apply equitable deviation to dispositive trust provisions, they will change a trust’s purpose without grappling with the question at the heart of cy près: did the settlor have a charitable intent broader than the specific one articulated in the trust instrument, and, if so, can the trust be modified in a way that is consistent with that more general intent?
Ryan’s empirical results are discouraging to anyone who craves doctrinal consistency or is a stalwart for dead-head control. Ryan found that while courts tend not to make the mistake of applying cy près to administrative terms, they are far more likely to apply equitable deviation to dispositive provisions. (P. 69.) Moreover, with just a couple of exceptions, Ryan did not find reliable indicators of whether a court would confine its use of equitable deviation to administrative terms. Instead, Ryan found “no rhyme or reason to a court’s correct employment of the equitable deviation doctrine in any of the cases involving reversionary or gift over interest trusts; private purpose trusts; public purpose trusts; educational purpose trusts, medical purpose trusts; art, library, and museum trusts or religious purpose trusts.” (P. 69.) Ryan argues that this empirical finding “suggests considerable judicial confusion” about how and when the doctrine of equitable deviation ought to be used. (P. 69.)
Ryan deftly discusses how all three Restatements of Trusts contribute to this confusion by at times appearing to conflate equitable deviation and cy près. But the most intriguing part of his paper lays the blame squarely on the Uniform Trust Code (UTC). Ryan’s empirical analysis shows that in jurisdictions that have adopted the UTC, “the court was nearly half as likely to correctly apply cy près or deviation when the facts merited it, and more than twice as likely to get the decision wrong.” (P. 80.) Section 412 of the UTC allows judges to apply equitable deviation to the dispositive terms of a private (i.e. not charitable) trust. Section 412 may influence how judges apply equitable deviation in cases involving charitable trusts, particularly since the UTC does not clarify how Section 412 is distinct from cy près. (P. 42.)
Ryan argues that certainty in the traditional distinctions between equitable deviation and cy près promotes charitable giving. He writes that judicial confusion “is dangerous when considering the economy of charitable trust-making overall. Inconsistent case law may depress charitable trust-making if not corrected. Worse still, it may cause feelings of distrust of and illegitimacy in the court systems for donors, trustees, and beneficiaries.” (P. 92.) If judges fail to consistently apply cy près to dispositive provisions in charitable trusts and instead use equitable deviation, settlors may worry that courts will interfere with a trust’s underlying purpose and thereby thwart the settlor’s charitable intent. (P. 93.) This concern could depress charitable giving.
Beyond analysis of confusion about the application of cy près and equitable deviation, Ryan’s analysis provides information that is useful to prospective litigants and their lawyers. He finds, for example, that the presence of a gift over clause is highly predictive that a court will deny an application for cy près or deviation (Pp. 62-63) and that courts are far more likely to grant applications when a trust has an educational purpose, a medical purpose, and most especially a broad public charitable purpose. (P. 74.) Ryan’s data also suggests “a modest preference for modifying trusts as the passage of time renders a trust ineffectual.” (P. 75.)
Ryan’s assertion that certainty promotes charitable giving underscores the value of the kind of careful empirical analysis evident in Confusing Cy Près. As I read Ryan’s work, I thought about the many reasons settlors establish charitable trusts—including benevolence, a desire to signal and maintain social status, tax planning, and so forth—and wondered whether settlors with optimism bias may simply fail to contemplate that their trusts will ever need modification. I hope that in future work, Ryan uses his formidable empirical talents to shed light on the extent to which certainty about dead hand control promotes charitable giving. In the meantime, Ryan has provided insight into how the doctrines of equitable deviation and cy près play out in judicial decisions across all jurisdictions.
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