April 24, 2024


Built General Tough

Legal-Ease: ‘As close as possible’ as a matter of law

Usually, the law is seen as a perfectionist world. It is true that some lawsuits have been won and lost due to an extra comma or missing word in a 100-page document. And, usually, perfection is the goal of most attorneys. This is particularly true as to wills, because wills become important once the signer is dead and therefore no longer able to fix mistakes.

As a general rule, courts never like to rewrite agreements that people themselves prepare and sign. However, after people prepare documents that may have been perfect when signed, the world changes. The terms, conditions, expectations, facts and circumstances presumed or laid out in the document might have become extinct, impossible or illegal in the time between document signing and document enforcement/interpretation.

The classic example of this circumstance involves a case from over 100 years ago. Before the Civil War, a guy set aside money in his will to convince the general public to make slavery illegal. That guy survived the Civil War (and the technical prohibition of slavery) but never updated his will.

Of course, then, the guy died. The guy’s family argued that since the guy’s sought-after goal of convincing the general public to outlaw slavery was no longer necessary, the family members should get the money. Instead, the court applied a legal doctrine called cy pres, which is pronounced “see pray,” which means “as close as possible.” The court used the money that was to be used to convince the general public to prohibit slavery instead be used to promote greater freedom for recently free slaves.

A more practical application of cy pres for our region and our times would involve gifts made in our wills to our churches or to our schools. Someone’s will might provide that $10,000 should be paid for the upkeep of the Saint whomever Christian Church on Oak Street. However, by the time the person dies, that church may no longer exist, physically or as a congregation/parish.

Later, the person could die without having updated his or her will. In such a situation, a court would likely direct the $10,000 to a nearby church of a similar or the same denomination or another church nearby if many of the members of the discontinued church eventually joined that nearby church.

Importantly, cy pres is not a doctrine that is often used, and its application is limited to circumstances where the words in a document can very literally no longer physically accomplish what the signer of the document intended, which signer intention is the ultimate goal of our legal system in these contexts.

Therefore, for example, there are several churches in our region that include in their name “St. John.” If someone’s will directs that money is to go to St. John’s Church, the executor of the will and the probate court will determine which St. John’s Church the will signer intended. There will not be a cy pres application to spread the money among all the St. John churches in the region.


Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.