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Application of Cy-près Doctrine to Charitable Gift

The recent case, Romanic v. La Fabrique de la Paroisse Sainte-Sophie[1] is another case involving a gift to a charity that ceased to exist before the testator’s death. The case is unremarkable in its reasons and result, but it is useful to re-examine the law that applies in such circumstances.

The deceased, Mr. Clavelle, was born in Sainte-Sophie, Quebec in 1919. He died 14 September 2014 at age 95. He was not survived by any biological or adopted children and his wife predeceased him in 2008. Mr. Clavelle had been baptized at La Fabrique de la Paroisse Sainte-Sophie (“Sainte-Sophie”) and he and his family attended that church while he was growing up. He was a devout Roman Catholic and made generous donations to various churches and other religious organizations throughout his life. He maintained close contacts with his home parish of Sainte-Sophie, even after he moved to Ontario. His desire was to buried there eventually in the family plot.

Mr. Clavelle made his will on 29 August 2012. In it he left the residue of his estate to the Paroisse Sainte-Thérèse-de-L’Enfant-Jesus (“Sainte-Thérèse”).

Sainte-Thérèse was created in 2001 through the amalgamation of two old parishes, Saint-Antoine and Sainte-Sophie. Thus, both of those parishes had ceased to exist when the will was made. The Sainte-Thérèse parish operated out of the site of the old Sainte-Sophie church. However, in January 2014, some nine months before Mr. Clavelle’s death, the Sainte-Thérèse parish was dissolved and two new parishes were created, again called Saint-Antoine and Sainte-Sophie. Sainte-Thérèse transferred its assets to the new Sainte-Sophie parish and possible also in part to the new Saint-Antoine parish. The new Sainte-Sophie parish continued to operate out of the original Sainte-Sophie/Sainte-Thérèse church site.

Since the beneficiary, Sainte-Thérèse, did not exist on the date of the testator’s death, the executor brought an application for directions about the disposition of the bequest of the residue. Saint-Antoine and Sainte-Sophie were named respondents. All other relevant parties were served, but none claimed entitlement to the residue. Saint-Antoine did not appear and took no position in the matter.

When a charity is amalgamated with another, or has changed its name before the testator’s death, the court can often treat the new entity as the successor of the charity named in the will. Sainte-Sophie thus argued first that it was entitled to the residue as successor to Sainte-Thérèse. However, the court rightly held, by reference to Fort Sackville Foundation v. Darby Estate,[2] that this was not possible. Although the new Sainte-Sophie was closely related to Sainte-Thérèse, the latter was dissolved and did not merely change its name. Thus, the new Sainte-Sophie was not the successor to Sainte-Thérèse.

Sainte-Sophie then argued that it was entitled to the gift by the application of the cy-près doctrine. When a beneficiary dies or ceases to exist before the testator’s death, the gift lapses and, if it is a gift of residue, it will pass on an intestacy.[3] However, if the beneficiary is a charity, the gift can be saved by the cy-près doctrine.[4] It applies if:

(a)  there is an initial impossibility or impracticability in carrying out the gift;

(b) the testator has manifested a general charitable intention in making the gift;[5] and

(c)  the alternative charity’s objects are as near as may be to the original.

The fact that the testator named a particular church might have meant that he had no general charitable intention. However, the surrounding facts clearly showed that he wanted to benefit the parish where he was baptized, of which he was a member, and with which he retained a close connection all his life. Consequently, the court directed that the moneys be paid to the respondent, La Fabrique de la Paroisse Sainte-Sophie.

[1]    2020 ONSC 3534.

[2]    2010 NSSC 27.

[3]    See Oosterhoff on Wills, 8th ed. by Albert H. Oosterhoff, David Freedman, Mitchell McInnes, and Adam Parachin (Toronto: Thomson Reuters/Carswell, 2016), §15.2.

[4]    For this proposition the court cited Re McGregor Estate, 2014 BCSC 8906 and other authorities.

[5]    This is necessary only if the charity ceased to exist before the testator’s death. If the gift fails because of a supervening impossibility or impracticability, as when the charity ceases to exist after the testator’s death, or if there is no longer a need for the gift, the gift will always be distributed cy-près. See generally Oosterhoff on Trusts, 9th ed. by Albert H. Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters/Carswell, 2019), §§7.7.2, 7.7.3.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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