Regrettably, Anglicans continue to tear themselves apart over a doctrinal change authorizing, but not requiring, the liturgical blessing of same–sex unions by clergy.
In what the British Columbia Court of Appeal (“CA”) described as a “difficult case”, the ability of members of four Anglican parishes (the “Plaintiffs”) to remove themselves from the diocese and from the oversight of their Bishop, while at the same time continuing to use the church buildings and related assets of their parishes for Anglican worship, was tested. The Plaintiffs brought their application for an order for possession and control of church properties and for a cy-près order regarding a testamentary bequest of property. The Plaintiffs’ primary relief for possession and control of church properties was dismissed at trial, but the cy-près scheme the Plaintiffs proposed for the testamentary bequest was granted. The Plaintiffs appealed to the CA. The diocese cross-appealed the granting of the cy-près order.
The case raises many interesting and complex legal issues. However, I will concentrate on the purpose and intent of the formidable sounding cy-près doctrine. Succinctly put, when the original objective of the testator of a charitable trust becomes impossible, impracticable, or illegal to perform, the cy-près doctrine allows the court to amend the terms of the charitable trust as closely as possible to the original intention of the testator to prevent the trust from failing. A very helpful tool of equity.
Dr. Daphne Wai-Chan Chun had made a testamentary bequest to the building fund of the Church of the Good Shepherd, one of the four breakaway parishes. The trial judge found that Dr. Chun had intended the proceeds of the bequest to be applied to the building needs of the Chinese community. However, three parishes with substantial Chinese congregations had left the diocese, leaving only a small parish approximately half of who were Chinese parishioners. In fact, the parishioners of the Church of the Good Shepherd had voted unanimously to leave the diocese and join the relatively nascent Anglican Network of Canada (“ANiC”).
According to the CA, as the diocese no longer had a significant group of Chinese parishioners, it was unlikely that a new building for the Chinese community would be required. “Thus the proceeds of Dr. Chun’s bequest, as written, were likely to remain in trust [i.e. no new church building would ever be built], rendering the bequest useless.” The trial judge held that the scheme proposed by the Plaintiffs for the funds to be held in trust for the building needs of the ANiC congregation best fulfilled Dr. Chun’s original charitable intent and granted a cy-près order. The diocese appealed as it had lost the use of the bequest. However, the CA dismissed the appeal holding that the trial judge did not err in coming to his conclusions, which were factual and supported by the evidence.
The upshot is that the cy-près doctrine can be an invaluable tool to ensure that the charitable intent of a testator is respected despite the changing sands of time.
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