Estate Planning

Finding "Common Ground": So Close to Cy-Pres

By Hull & Hull LLP

Mr. Justice Brown recently considered whether to apply the doctrine of cy-pres in the matter of The Bank of Nova Scotia Trust Company v. Common Ground Women's Centre, CanLII 2010 ONSC 63.

(The doctrine of cy-pres is discussed in Megan Connolly's blog, here.)

In Common Ground, the deceased died in 2007, leaving a will dated 1997. The deceased's will provided that the residue of her estate was to be divided 'in equal shares among the following organizations which shall be in existence at my death…', and went on to list 18 charities, one of which was 'Common Ground Women's Centre, 736 Bathurst Street, Toronto'. 

As it turned out, Common Ground Women's Centre was in fact a charity, and had not been dissolved as at the date of death. However, it had ceased operations in or about 1997, and it had lost its charitable status.

An application to the court for directions was brought by the Estate Trustee. The following issues were raised in the application:

1. Was Common Ground in existence at the time of death?
2. If not, did the gift lapse, resulting in a partial intestacy, or did the doctrine of cy-pres apply?
3. If the doctrine of cy-pres applied, to whom should the Common Ground share be paid to?

As to the first issue, the court held that although Common Ground continued to have 'legal' existence, the deceased's wording of the Will was such that she intended that the charity be able to apply the gift to charitable purposes. Thus, the intention was that the charity be active and operating at the time of death: Common Ground was not.

As to the second point, the court found that the issue of determining whether there was a lapsed gift or whether the cy-pres doctrine applied did not arise. Rather, the specific language of the will, requiring that the charity 'shall be in existence' avoided the problem.   As Common Ground was not in existence, the residue passed to the remaining 17 charities, in equal shares.

Thank you for reading. Have a great weekend.

Paul Trudelle

Paul E. Trudelle - Click here for more information on Paul Trudelle. 

Full post as published by Toronto Estate Law Blog on March 05, 2010 (boomark / email).