In the recent decision of Dors et al. v. The Public Guardian and Trustee, the Ontario Superior Court ruled that a gift in a testator’s will to a charity that no longer exists should be distributed to “a charity with similar charitable objectives in accordance with the doctrine of cy-près.”^[1]

The Positions of the Parties

Commenced as an application for directions, The Applicants took the position that the gift should be distributed to the other 19 charities provided for in the testator’s will on a pro-rata basis. By contrast, the Public Guardian and Trustee took the position that in accordance with the doctrine of cy-près (the ability of the court to amend a legal document in order to enforce it as nearly as possible to the original intent of the instrument), the failed gift in the will ought to be paid to a charity with similar charitable objectives to the one chosen by the deceased.^[2]

Circumstances Where the Doctrine of cy-près Applies to Gifts in a Will

Ruling in favour of the Public Guardian and Trustee’s position, the court, amongst other things, articulated and applied the principles from Conforti v. Conforti that:

The cy-près doctrine may be used by the court to direct a gift in a Will to an institution or organization other than the one named in the Will if:

a) the gift in the Will is impractical or impossible;

b) the testator manifested a general charitable intention in making the gift in the Will; and

c) the gift to the alternative institution or organization would be a gift resembling the initial purpose of the gift in the Will.^[3]

a) The Gift is Impractical or Impossible

Being that the charity in question no longer exists, the court found the gift was impossible.^[4]

b) The Testator Manifested a General Charitable Intention in Making the Gift in the Will

Finding that the testator manifested a general charitable intention, the court relied on the criteria set out in Re Jacobsen that:

1. the bequest was a gift without limitation to a charitable institution;
2. the gift is made from the residue of the estate;
3. the other beneficiaries received cash legacies; and
4. there is no gift over in the event of a lapsed gift, and the remaining residual beneficiaries are all charities.^[5]

At the same time, the court further discussed the general charitable nature of the testator during their lifetime and the proportional size of the failed gift, demonstrating that the Re Jacobsen factors are like contributory factors towards establishing general charitable intent rather than requisite elements.

c) The Gift to the Alternative Institution or Organization Would be a Gift Resembling the Initial Purpose of the Gift in the Will

While the failed gift in question was made to a charity assisting orphans in South America, the court found that none of the remaining 19 charities provided for in the testator’s will had a similar purpose, and providing them with the failed gift would defeat the testator’s intentions. Instead, in the face of the failure of the gift and the lack of any gift over provision in the deceased’s will, the decision was rendered that the gift should be directed towards a charity with similar charitable objectives.^[6]

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[1] Dors et al. v. The Public Guardian and Trustee, 2023 ONSC 1503.

[2] Ibid at para 2.

[3] Ibid at para 20; Romanic et al. v. La Fabrique de la Paroisse Sainte-Sophie et al., 2020 ONSC 3534, 61 E.T.R. at paras. 21-22; and Conforti v. Conforti  (1990), 39 E.T.R. (Ont. Gen. Div.) at para 14.

[4] Ibid at para 22.

[5] Ibid at para 23; Re Jacobsen (1977), 1977 CanLII 1733 (BC SC), 80 D.L.R. (3d).

[6] Ibid at para.