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It’s not uncommon for will writers to choose to donate part of their inheritance to charities or local initiatives. Sadly, it’s also not uncommon for people to write their wills and never update them to reflect changes in their life and assets. Because of this, executors are sometimes in a position where the will dictates to donate money to a charity that no longer exists. Due to the nature of charitable donations, it’s usually clear how the will writer wished for the money to be used even if the organization doesn’t exist anymore. When this happens, the Cy-près Doctrine can be enacted, which allows the courts to interpret the terms of the will in a different way, in some cases naming the inheritance to a different charity or cause with a similar purpose.
The Cy-près doctrine allows courts to change a charitable donation in a will to reflect the intentions of the will writer when the original gift is no longer practical. The courts use the Cy-près doctrine to prevent the charitable gift from lapsing (failing) altogether. The Cy-près doctrine can be invoked when the executor starts a petition to be heard before the courts.
Usually, donations to a charity are made using the remaining residue of an estate after all the beneficiaries have received their gifts. As per the Cy-près doctrine, when a charitable intention exists in the provision, the gift will not fall intestate and instead find the correct organization or a new organization to donate the gift. If the charity named doesn’t exist in any form, the residue would follow intestacy laws and be distributed to the will writer’s spouse or children.
It can be unclear what “charitable intention” in a will entails. While there’s no specific definition by law, the courts are typically quite lenient with the definition. The courts are generally encouraging of charitable donations and will do whatever they can to ensure a charitable donation finds its home. If there is any reasonable evidence to assume there was charitable intent, the courts will apply the Cy-près doctrine to find a recipient for the gift that will have the effect that the will writer intended.
A charitable intention is found if the named charity does not exist, but it’s clear that the gift was for the purpose of a specific charity. For example, let’s say a will stated “with the residue of my estate, I will donate to ‘BC’s Charity for Breast Cancer’ to help find a cure for women who suffer from breast cancer.” The executor would find this problematic as there is no charity or organization with the name “BC’s Charity for Breast Cancer.” Using the Cy-près doctrine, the courts would be able to use this gift for a different organization with the same purpose because there is a clear charitable intent by the will writer. The will writer obviously wants the money to be spent on breast cancer research, so the money could be donated in a trust fund to the BC Cancer Foundation with the purpose of being spent on breast cancer research.
In a difficult court case in BC, Bentley v. Anglican Synod of the Diocese of New Westminster (2010), the will writer’s charitable gift to her church’s building fund was unable to be applied. The court found that the will writer’s intention was to use the funds for the building needs of the Chinese community. If the funds were put into a trust as described in her will, they would remain stagnant, never to be used. It was impractical to do this and the judge found it appropriate to enact the Cy-près doctrine. The judge proposed that a trust fund be created where the funds would be used solely for the building needs that the will writer requested in her will.
In any case, the courts will always strive to interpret and enact wills in the way that the will writer had intended, even if that means modifying the will in some way. As per charitable donations, the courts are not hesitant to invoke the Cy-près doctrine to ensure that the correct organization is given the charitable donation.
If you’re an executor who is unsure what to do in the case of a non-existant charity being named in the will, contact an experienced estate lawyer today. We will help you to administer the estate, ensuring the will writer’s final intentions are respected.