With this month’s blog theme of charitable giving in mind, I review Francella v. Tokarz, a case where a gift failed to an organization that formerly had charitable status.

The deceased, Janis Scott, sustained a serious brain injury in a car accident in 2012 and was subsequently on a variety of medications. Ms. Scott was awarded a structured settlement in the amount of $150,000, to be paid in monthly installments to her litigation guardian, for Ms. Scott’s benefit during her lifetime and for her estate’s benefit upon her death.

In 2019, Ms. Scott, with the involvement of her neighbor’s daughter, Ms. Tokarz, hired a lawyer to make new power of attorney documents and a will. The documents were never signed. Two weeks later, again with Ms. Tokarz’s assistance, she hired another lawyer for the same tasks. The new will and powers of attorney were signed on February 22, 2019. The new will appointed Ms. Tokarz as the sole executor and the recipient of a $5,000 gift in lieu of compensation, with the residue gifted to The Humane Society of Canada. Ms. Scott’s daughter, Kelly, was expressly excluded as a beneficiary, and Ms. Scott’s son, Anthony, was not mentioned in the will, despite Ms. Scott having a positive relationship with both her children.

Ms. Scott died in March 2021, survived by Kelly and Anthony.  The litigation guardian died in June 2021.

Kelly challenged the validity of the will. Ms. Tokarz did not propound the will. She ultimately renounced her appointment as estate trustee, and wrote to Kelly stating her view that Ms. Scott was not capable of making the will and would not have wanted the settlement funds to go to the Humane Society instead of to Kelly and Anthony.

The Court found suspicious circumstances to exist regarding the making of the will, including by virtue of Ms. Tokarz’s involvement and by virtue of the express exclusion of Kelly as a beneficiary, especially in the face of Ms. Scott’s brain injury and the evidence that she lacked capacity since at least 2012. It was also significant to the Court that the will challenge was undefended and that the named estate trustee saw the will as invalid. Further, it was noted that the Humane Society’s registration as a charitable organization had been revoked in 2015, prior to the making of the will.

The Court declared the will invalid, declared Ms. Scott to have died intestate, appointed Kelly as the estate trustee, and ordered the estate to be distributed equally to Kelly and Anthony.

Interestingly, the Humane Society did not participate in the application, which I surmise was in part because it is no longer a charity and in part in consideration of the costs risk given the modest amount of the estate and the incapacity evidence.

Thanks for reading and have a great day,

Natalia Angelini