By Jacqueline M. Demczur

The Ontario Superior Court of Justice has confirmed that when an individual makes a gift in a will to a charity that no longer exists, the court may apply the doctrine of cy-près to vary the terms of the will so that the gift may be made to a charity with similar charitable objects.

In the case of Dors et al. v. The Public Guardian and Trustee, the testator, Anna Salnikova, who had passed away in 2006, left 20 percent of the residue of her estate to a charity that no longer existed (the “Mission”). The trustees of her estate wished to distribute this gift on a pro rata basis to the other 19 charities that Ms. Salnikova had named in her will. However, the Public Guardian and Trustee of Ontario (“PGT”) objected and instead requested that the amount be paid to a charity with similar charitable objects to the Mission in accordance with the doctrine of cy-près. In its decision dated March 6, 2023, the Ontario Superior Court of Justice agreed with the PGT and found that it should apply the doctrine of cy-près so that the gift could be made to a charity with similar charitable objects as those of the Mission.

Cy-près is a doctrine that allows a court to vary the terms of a will if: (1) the testator’s intentions are either impossible or impractical to carry out, (2) the testator demonstrated a general charitable intention in making the gift in the will, and (3) a gift to an alternative organization would be a gift resembling the original purpose of the gift in the will. In this case, the court found that it was impossible to make the 20% gift as described in the will because the Mission no longer existed. Further, Ms. Salnikova manifested a general charitable intention in her will as she had left 95 percent of her estate to charities. The 20% gift was the largest gift to a charity made in her will and, based on this together with Ms. Salnikova’s involvement in fundraising for the Mission during her life, the judge inferred “that this charity and its objects was of particular importance to the deceased.” Since none of the other 19 charities named in the will appeared to have a similar purpose to that of the Mission and to not defeat the testator’s intention to benefit the specific type of charitable work done by the Mission, the court found that a gift should instead be made to a charity with similar charitable objects to those of the Mission.

The trustees of Ms. Salnikova’s estate had argued that since the Mission no longer existed, the gift to it in the will must lapse, thereby creating an intestacy and resulting in the 20% gift being distributed pro rata amongst the other remaining 19 charities. However, the court disagreed with this position, stating that:

[29] […] It is clear that courts will not favour an intestacy where it can be inferred that the Testator intended to devote the failed gift to the charitable purpose or objects of the former institution. In such cases the Court will apply the cy-près doctrine in order to apply the bequest to a charitable object as close as possible to the original purpose.

Therefore, the court tasked the PGT with providing the trustees of Ms. Salnikova’s estate a list of nominee charities with similar charitable objects to those of the Mission. The trustees could then choose one of the nominees and pay the 20% gift to that organization. 

This case is an excellent example of the type of situation in which the court will seek to apply the doctrine of cy-près to vary the terms of a charitable gift made in a will which are impossible or impractical to carry out. In such a situation, because the court prioritizes the testator’s original charitable intention in making a gift through a will, it is much more likely that a court will apply the cy-près doctrine as opposed to allowing a gift to a charity to lapse.

​Read the March 2023 Charity & NFP Law Update