Clark Wilson LLP Article

The Cy-Près Doctrine: Protecting Charitable Gifts

Aaron Pearl, TEP
Associate, Estate & Trusts
Clark Wilson LLP

In some cases, a gift to a charity provided through a will becomes impossible to fulfill because the charity no longer exists after the will-maker’s death. Due to the importance of charitable giving, a doctrine has arisen in the common law, called “cy-près” which allows courts to alter the terms of a charitable bequest in situations where there is a “general charitable intent” which cannot be carried out due to “impossibility” or “impracticability.” In such circumstances, the court can make an order to apply the property in a way as close as possible to the charitable intent of the will-maker. Of course, the interpretations of the above noted terms, which inform whether the court can perform this function, are crucial.

…cy-près which allows courts to alter the terms of a charitable bequest…

The “cy-près” concept is well illustrated in the British Columbia Supreme Court case of Eberwein Estate v Saleem, 2012 BCSC 250. In this case, a bequest in a will was made to a charity called “Aid to Animals in Distress,” a charity to which the will-maker had gifted various amounts throughout her life. However, the charity ceased to exist in 2007, and the will was made in 2010. The executor went to court for directions regarding the construction of the will. The court found that the cy-près doctrine could not apply. While the will-maker had a clear fondness for animal welfare, the evidence before the court was not clear enough to show that the will-maker would have wanted money to go to another charity if this gift failed. Part of the consideration in this case was that the will-maker had made nine separate bequests in her will to identified charities on a range of subject matters. In the circumstances, the will-maker was found to have such specificity in her will that the court could not find a “general charitable intent” with respect to the gift. The gift lapsed and formed part of the residue of the estate.

Precision and specificity are important to ensure that your intentions in your will are clear and possible for the executor to carry out.

This case, aside from being an interesting read, has several important lessons for charitable giving. Precision and specificity are important to ensure that your intentions in your will are clear and possible for the executor to carry out. However, adding a clause in your will that communicates your intentions in a more general way may contribute to the survival of a gift if a charity ceases to exist at a later date.

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