Failure of a Charitable Gift

July 28, 2011 Hull & Hull LLP Estate & Trust, Wills Tags: , , , , , , 0 Comments

In the recent case of McDougall Estate, 2011 ONSC 4189 (CanLII) the deceased passed away leaving a handwritten will and codicil that together constituted a valid holograph will. The deceased had one surviving relative, his 83-year-old sister who lived in Florida.  

The will did not name an estate trustee and so the deceased’s close friend applied for and obtained a Certificate of Appointment of Estate Trustee with a Will. 

The will left the deceased’s estate to his sister, with a gift-over to “Eye Care research in Glaucoma and Catarach (sic) research”. The codicil said “this shall be expanded after all expenses and encumberances including burial, and the portion to [illegible – the Court determined it was either “expand” or “eye and”] glaucoma … At my death the remainder of my possession shall be bequathed (sic) to my sister Pearl McDougall, now residing in Florida.”

The estate trustee flew to Jamaica at a cost of $859 to deliver a cheque for $9,000 to a clinic for which the deceased had a passion. She delivered the donation herself because she wanted to make sure the charity was legitimate. 

In interpreting a will, the court commented that its function was to determine the true intentions of the testator in light of all the surrounding circumstances. On a reading of the will as a whole, the testator intended to make a charitable gift for eye and glaucoma research and that the bequest to charity was to be paid before the residue would fall to his sister.  This interpretation gave effect to the evidence concerning the deceased’s intentions including his history of making charitable gifts and his desire to benefit eye research because of his own cataract surgery.

However, the charitable bequest failed because no specific amount or share was stated by the testator.

The McDougall decision also dealt with the passing of accounts and contained some instructive discussion regarding trustee compensation, which I will cover in tomorrow’s blog, so stay tuned!

Sharon Davis – Click here for more information on Sharon Davis

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