Charity No Longer Exists, So Wills Bequest Lapses Into Residue

Wills Bequest Lapses Into Residue

Our previous blog related to the wills interpretation issues related to the Eberwein Estate 2012 BCSC 250.

One of the issues involved in the interpretation of this will related to a charitable gift to an organization called Aid to Animals In Distress.

The deceased had previously given small donations to this charity in 1998, 2000 and 2001 respectively.

The charity operated a cat shelter and the evidence was clear that the deceased clearly loved cats.

The deceased left an estate of nearly $10 million, and as previously blogged, left no children or spouse.

The problem however is that the deceased died in 2010 and this particular charity ceased to exist in 2007, prior to the making of the will in February 2010, one month before the death of the testatrix.

The legal question involved was whether or not the bequests to this charity, a cat shelter, was evidence of the general charitable intention such that, through the application of the cy-pres doctrine, another charity in the same field could be benefited?

Or alternatively, if there was no general charitable intent, did the gift lapse and fall into the residue of the estate.


The general principles involved are that where it is impossible to carry out a gift, but it can be shown that the donor or at a general charitable intent, the court has inherent jurisdiction to make an order for a cy-pres scheme, that is the property be applied in a way as close as possible to that scheme set out by the testatrix.

The court reviewed case law in favor of the proposition that if a will maker showed an intention to make a gift to a particular institution, but that institution is no longer in existence at the time of the testator’s death, the gift will fail.

The court also reviewed case law where the will maker named one charity in a will as the beneficiary the residue of the estate, where the court was able to construe a general intention despite the wrong naming of the charity that never even existed

In this particular case however, the will maker made nine separate bequests to nine identified charities covering a range of subject matters of which the named aid to animals in distress was only one.

It was not a misnomer but was a real charity to which she had donated in the past.

The court accordingly concluded that the deceased did not have a general charitable intent with respect to that gift, and accordingly that gift lapsed and form part of the residue of the estate

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