While there is a widely held view that the cy-près process has fidelity to the donor’s intention at its heart, policy concerns are in fact the main priority of the courts. This was true during the development of the doctrine, and it remains true in the present day. Linking historic precedent to the contemporary law, this chapter identifies shifting legal policy treatments of intention in relation to cy-près as it evolves over time. It uses two theoretical tools – dialectics and framing – in order to make the critical claim that where courts pay attention to donor intention in the cy-près reform process, they do so in a manner which is both coloured by and secondary to wider policy concerns.
Picton, John, Donor Intention and Dialectic Legal Policy Frames (December 20, 2018) in Research Handbook on Not-for-Profit Law, Edward Elgar, 2018, ISBN: 978 1 78536 998 8.