The careful execution of wills and codicils is never truly appreciated until upon dispensation of an estate, the testator/trix’s wishes are forgone in favour of a residual lapse.
On this occasion, the deceased intended to bequeath a considerable sum (at the time) to a specifically named college, in order that the students attending would continue to benefit from a religious education beyond his lifetime.
As illustrated, the relevant wording requires considerable forethought of specificity, because a failure to do so can prove either contributive or preventative, as was the case here.
When the testator requested that allotted funds were to be granted upon trust to the principal of a St.Thomas’s Seminary for the purposes of funding the attending scholars in their priesthood training, the beneficiary itself was specifically named and the subsequent use of those funds attached to that establishment.
This meant that the court was unable to apply the doctrine of cy-prés, which in turn resulted in a lapse of the gift into the testator’s residual estate.
For clarity, ‘cy-prés’ is a process whereby the courts can act within their capacity to draw inference from the underlying intention of a testator/trix, in order to allow a potentially lapsed gift to pass instead to a charitable organisation or cause similar to the one originally intended.
This judicial measure becomes operative when the designated recipient has ceased to exist upon death and subsequent enactment of a will or codicil.
Where a similar body can be proven to exist, the courts can essentially redirect the funds to that alternative beneficiary, on the proviso that the gift would be used for the ends described in the will.
Sadly, in the case of Rymer, the exactness of the wording and assigned legacy was such that no legal interception could follow, and thus no application of the above doctrine could stand, while the court reminded the parties that:
“[I]n a bequest where a particular charity appears to be or is named a general charitable intent or an intent extending beyond the limits of the particular institution may be discoverable sufficient to justify the application of the cy-près doctrine.”