Charitable Donations: Is the Charity Incorporated?

January 9, 2014 Hull & Hull LLP Charities 0 Comments

The start of a new year is generally a symbolic time to think forward and to implement new goals.  Interestingly enough, only 8% of people are successful in achieving their resolution according to Statistic Brain.  Moreover, the percentage of people who achieve their resolution each year is only 14% for those over the age of 50 as opposed to 39% of those in their twenties.

Foiled intentions are obviously a common theme in estates but we should ever lose our resolve to implement our goals.  With the gift giving season just passed, this may be a good time to revisit prior generosities and consider whether charitable bequests drafted in the past are likely to be implemented today or in the next decade.  A charitable donation under a will may fail if the named organization did not exist or has ceased to exist upon the testator’s death.  While the cy-pres doctrine may be available to save such a donation from resulting to the donor, a general or paramount charitable intent must be found in the will.  Where a general or paramount charitable intention is found, the donation may be applied to another charitable organization carrying out the same purposes or for a similar charitable purpose.  For a thorough discussion on the cy-pres doctrine, please refer to this blog post by Ian Hull on the subject.

Notwithstanding the remedial availability of the cy-pres doctrine, it is always worth our time in the present to inquire into the charities that we mean to benefit upon death.  To start, ensuring that the will references the proper and complete name of the charity will help eliminate later confusion.  Inquiries as to the corporate status of a charity is also a good idea.  A donation to an incorporated charity is presumed to be a specific gift to the named charity as opposed to the general purpose of that charity.  The law in Re Vernon’s Trust[1] was summarized in Tudor on Charities as follows,[2]

“a gift to an unincorporated body is per se a purpose trust and, provided that the work of the institution is still being carried on, the gift will be given effect to by a scheme, notwithstanding the disappearance of the donee during the lifetime of the testator unless there is something positive to show that the continued existence of the donee is essential to the gift.  However, if the gift is to a corporation, then prima facie it takes effect as a beneficial gift and, therefore there has to be something positive in the will to show that it was intended to create a valid purpose trust.”

Therefore, it is particularly important to evidence the intention of the donor in light of rebuttable presumptions at law depending on the corporate status of the charity.  Luckily enough, in the age of the internet, the CRA maintains a Charities Listings where you can find out if a charity is registered, revoked, annulled, suspended, or penalized.

Thanks for reading!  Hope everyone is staying warm!

Doreen So

[1] [1972] Ch. 300n.

[2] J. Warburton, Tudor on Charities, 9th ed. (Toronto Carswell, 2003) at 11-017.

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