Ontario Superior Court Applied Cy-Près Doctrine to Testamentary Gift to Dissolved Parish
November 2020 Charity & NFP Law Update
Published on November 26, 2020

By Theresa L.M. Man


The Ontario Superior Court of Justice released its reasons for judgement in the case of Romanic et al v. La Fabrique de la Paroisse Sainte-Sophie et al, on June 5, 2020. In this case, an application was brought to the court seeking direction with regard to a gift of the residue in the Last Will and Testament of Joseph Jacques Wilfrid Clavelle dated August 29, 2012 (the “Will”) to the Paroisse Sainte-Therese-de-L’Enfant-Jesus (“Sainte-Therese”), which had been dissolved prior to Mr. Clavelle’s death. Applying the cy-près doctrine, the court directed the testamentary gift to be received by another parish.

Sainte-Therese was created in 2001 as a result of the amalgamation of the old La Fabrique de la Paroisse Sainte-Sophie (“Old Sainte-Sophie”) with Saint-Antoine parish (“Old Saint-Antoine”). However, several months before Mr. Clavelle’s death, Sainte-Therese was dissolved and two new parishes were formed, being New Sainte-Sophie and New Saint-Antoine. The New Sainte-Sophie parish continued to operate out of the Old Sainte-Sophie/Sainte-Therese church site and argued that it was the successor of Sainte-Therese and thereby was entitled to receive the gift.

Because Sainte-Therese had been dissolved at the time of Mr. Clavelle’s death, the court held that the bequest to Sainte-Therese lapsed. The court also held that the law of successorship did not apply because New Sainte-Sophie was not a successor to Sainte-Therese, which simply ceased to exist with no successor entity.

However, the court directed the gift to be received by New Sainte-Sophie by applying the cy-près doctrine. In this regard, the court referred to the decision of the British Columbia Supreme Court in Re McGregor Estate, which held that where a testator leaves a legacy to an institution which later ceases to exist, then the gift either lapses and falls to be distributed on an intestacy, or comes under the cy-près doctrine if the court can infer that the testator intended to devote that property to a general charitable purpose. The cy-près doctrine may be used to direct a testamentary gift 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.

In this case, the court found that Mr. Clavelle’s gift in question met all the requirements because (a) Sainte-Theresa had ceased to exist making it impossible to carry out the gift; (b) there was a general charitable intention that the court could infer from the Will in the absence of a gift over or alternate residual beneficiary, because Mr. Clavelle was a devout Catholic and had long-standing ties to New Sainte-Sophie, where he chose to be buried, and because at the time the Will was made the work of the church was carried out by Sainte-Therese; and (c) directing the gift to New Sainte-Sophie would be a gift that best resembles the initial purpose of the gift in the Will. Accordingly, the court held that not directing the gift of the residue of Mr. Clavelle’s estate to New Sainte-Sophie would be to defeat his clear intentions.


Read the November 2020 Charity & NFP Law Update