In Re McGregor Estate 2014 BCSC 896, the deceased left a bequest to “Auxiliary to Woodlands”, a charitable organization that no longer existed at the time of death, but was saved from lapsing as a bequest of the estate by the application of the doctrine of Cy-Pres.
Generally speaking when a gift is left to an institution which later ceases to exist, the gift either lapses and fails to be distributed on an intestacy, or comes under the Cy- Pres doctrine. This doctrine applies to save the gift with the court can infer that the testator intended to devote that property to a general charitable and purpose, as was found by the court in this case.
A complicating factor was that the will provided for no gift over in the event of the failure of the bequest to the auxiliary to Woodlands, which was a former charitable association that provided “extracurricular services” to mentally disabled residents about school.
At the time of the making of the will, the son of the deceased was a resident of that school, but auxiliary services ceased to exist by the date of the deceased death in 1995 .
The executor brought a court application to have the will interpreted, and the court found that the will indicated a general charitable intent in favor of institutions dedicated to the improvement of the lives of the mentally disabled .
The cour applied the Cy–Pres-doctrine, and ordered that the gift be redirected to another society, which was a charitable organization providing extracurricular social support services to mentally disabled persons, and where the deceased son resided until his death in 2013.
Cy-Pres Doctrine law
19] It sometimes happens, as in this case, that testators leave a legacy to an institution which later ceases to exist. When that happens, the gift either lapses and falls to be distributed on an intestacy, or comes under the cy-pres doctrine. The doctrine of cy-pres applies to save the gift where the court can infer that the testator intended to devote that property to a general charitable purpose: see Re Estate of Robert Hugh Buchanan (1996), 11 E.T.R. (2d) 8 (B.C.S.C), affirmed (1997), 44 B.C.L.R. (3d) 283 (C.A.), which the Court followed in McGregor.
[20] Cy-pres means “as near as” possible; according to the Court of Appeal in Buchanan Estate, in cases where a charitable gift or bequest has become impossible or impracticable, it allows the court to apply the property to some other charitable purpose as nearly as possible resembling the original purpose.
The case of Buchanan Estate is factually quite similar to this matter. There, the testator left an estate of approximately $1.1 million. The residue of the estate was to go to the Loyal Protestant Home for Children. Unfortunately, there was no legal entity with that name, although there was a
Loyal Protestant Association in New Westminster, which had operated a residential care home for orphans and underprivileged children during the deceased’s lifetime. Further, prior to the deceased passing, the association had ceased to operate the home and its charitable activities had shifted away from that particular purpose. The association instead was involved in distributing funds to other altruistic and charitable associations.
[25] Justice Hogarth indicated that there was no difficulty with the failure to appropriately name the legal entity operating the institution. However, he held that where the gift was given “with the obvious intent of benefiting the particular function that… the Home was performing at the time the will was made”, it could not go to the association where it no longer carried on the activities that the testator intended to assist; that is to say, “basic care for orphans and other underprivileged children”.
[26] Discussing whether the will showed a general charitable intention, Hogarth J. noted that such an intention appeared where the donor’s paramount intention with the gift is to effect some charitable purpose. He indicated that the court should examine the testator’s gift and what would be involved in the testator’s plan or project. The gift must be examined to determine whether or not the “specific formulation of the purpose of the bequest is … exhaustive of the intention of the testator” (quoting Weninger Estate v. Canadian Diabetes Assn. (1993), 2 E.T.R. (2d) 24 at 33 (Ont. G.D.)).
[27] Hogarth J. accepted that Mr. Buchanan’s intent was to help fulfil the objects of the Loyal Protestant Home for Children; in other words, to better the lives of indigent children. “The question becomes, then, whether this intention was so specific as to limit it to the children of the non-existent Loyal Protestant Home for Children in New Westminster”, he said.
[28] In my view, the same question is raised here. It appears that Ms. McGregor’s intent was to help fulfil the objects of the Auxiliary for Woodlands. She wished to support their efforts to improve the lives of the mentally challenged by providing opportunities for activities or services that would not otherwise be available. The question is whether the gift was specific to the residents of Woodlands who were benefited by the work of the Auxiliary.
[29] In Buchanan Estate, Hogarth J. concluded that there was a general charitable intent, despite the fact that the will specifically named one institution. In doing so, he relied particularly on two points: first, the gift was a residuary bequest made to a charitable institution with no gift over on its failure; second, the will otherwise contained bequests to some, although not all, of the testator’s next of kin. The criteria in other decisions, he concluded, exhibited a common theme:
A general charitable intention will be evidenced in part when the gift consists of the residue of the estate and there is no obvious consideration of what happens to the gift should it lapse. The underlying assumption is that the testator did not make preparations in the event of a lapse, because he had planned that the money would go forward to his general charitable purpose.
