A testator may wish to provide gifts to a charity or charities under their will, but practical difficulties may arise when it is time for the executor to give effect to the will. For instance, a named charity in the will may no longer exist by the time the testator has died. This creates uncertainty as to the beneficiary of the gift and therefore, risk of the gift failing entirely. Fortunately, the cy-près doctrine can be used to remedy this situation. The cy-près doctrine is an equitable remedy which the court may apply if two requirements are met:

1. the donor had a general or overriding charitable intent; and
2. it is impossible or impractical to carry out the charitable legacy.

Galloway Estate v British Columbia Society for the Prevention of Cruelty to Animals, 2021 BCSC 413 is a good example of when and how the court will apply the cy-près doctrine where a named charity in a will ceases to exist after the testator has passed.

Sheila Holland (“Holland”) and Lea Galloway (“Galloway”) were twin sisters who had both passed away leaving wills that named the same person as their respective estate trustees. Holland died in 2010, and her will directed her estate trustee to hold the estate in trust for Galloway’s benefit for her lifetime, and upon Galloway’s death, the trust was to be divided into ten equal shares, with seven of those shares to be distributed to specified institutions for charitable or educational purposes. In particular, the Open Learning Agency (Knowledge Network) and Pacific Coast Public Television Association (PCPTA) were to receive one equal share for the funding and promotion of commercial free programming.   

Galloway died in 2020 and her will provided that 25% of her estate was to go to Holland if she survived her, and the remainder of the estate was to be distributed to the named charities that were in existence as at the date of her death – this included the Open Learning Agency (Knowledge Network) and PCPTA.

Both Holland and Galloway had a history of donating to the PCPTA while they were alive.

PCPTA was a registered Canadian charity organized in 1987 by KCTS Television, a U.S. television broadcasting company that owned and operated an educational channel. PCPTA was incorporated as a Canadian charity to enable KCTS Television to issue tax receipts to Canadian donors. KCTS Television changed its name to Cascade Public Media (“CPM”) in 2015, and remained a non-profit in nature and continued to operate the educational channel. PCPTA was dissolved in 2018.

The estate trustee petitioned the court for directions on the issues regarding some of the named charitable beneficiaries in both estates. The B.C. Attorney General was a respondent to the petition in accordance with its parens patriae jurisdiction regarding charitable activities. One of the issues to be determined was whether the gift to PCPTA under the Galloway Will should be paid to CPM as a successor of PCPTA’s assets. The B.C. Attorney General argued that Galloway’s gift to PCPTA did not disclose a general charitable intent and therefore is not subject to the cy-près doctrine. The clear wording of the Galloway Will indicated that the residue of the estate was to be provided to the charitable entitles that were in existence at the date of her death, and the PCPTA was not in existence on that date. CPM argued that Galloway’s overall charitable intention was to benefit the educational channel that was previously operated by KCTS Television and is now operated by CPM as the successor. Accordingly, CPM was of the view that it should receive the gift.

The court concluded that the gift to PCPTA should be made to CPM under the cy-près doctrine. The evidence established that PCPTA had the charitable purpose of receiving funding for its educational channel through its viewer-donors, and that CPM now operated this channel. Importantly, CPM was exclusively involved in broadcasting that channel and it was the sole recipient of all funds donated to PCPTA through amalgamation with KCTS Television. Galloway supported this educational channel for years and is presumed to have known that the sole purpose of PCPTA  was to receive and flow donations for the broadcaster of the channel through a Canadian charity that could issue charitable tax receipts to Canadian donors.

While PCPTA did not exist at the time that Galloway drafted her will nor on her date of death, the court ultimately found that her intent was to support the educational channel and this intent can be fulfilled if the gift to PCPTA is made to CPM.

Thanks for reading,

Ashley Naipaul