By Terrance S. Carter and Urshita Grover

In Gruber v. Hebrew University of Jerusalem, the Ontario Superior Court of Justice ruled that the gift of the residue of the deceased’s estate to the Hebrew University of Jerusalem (the “University”) was not void for uncertainty or for any other reasons. In doing so, the court addressed the legal status of the testamentary gift, which the court found was accompanied by precatory language because of the use of the word “assumptions” to “guide” the allocation of funds to the University, which expressed the deceased’s wish concerning how the funds would be used as opposed to an obligation. Citing Justice Abella and Justice Feldman of the Ontario Court of Appeal in the case of Christian Brothers of Ireland in Canada, the court distinguished between a “precatory gift” and a “charitable purpose trust”, as follows:

a “precatory gift” to charity is not to be interpreted as a charitable purpose trust but rather a bequest in which the donor merely imposes some moral obligation on the receiving charitable corporation to use the property in a certain way with words of expectation, desire, or purpose rather than mandatory language to create a legal obligation.

For context, the deceased, Yaacov Glickman, left a will naming his close friend, Moshe Gruber, as executor and trustee. The will provided that, upon the death of Glickman’s wife, the residue of his estate was to be used to establish an “endowment” or “foundation” at the University “for the sole support of an academic project that shall be judged as instrumental in ‘educating Jews and Arabs to live in peaceful coexistence.’.” The will also included a detailed list of ten “basic assumptions that must guide the allocation of funds for the purposes of this project”.

Gruber brought an application seeking the court’s interpretation of the will, expressing concern that the language of the bequest may be internally inconsistent, ambiguous and vague. In the court’s decision, Justice Papageorgiou reiterated that the court’s task is to give effect to the testator’s intentions using both the plain language of the will and, where necessary, surrounding circumstances. Further, the decision reinforced the courts’ general reluctance to allow charitable gifts to fail and their preference to interpret wills in a manner that avoids intestacy, particularly when the charitable object of the testator can be clearly ascertained.

The court addressed each of Gruber’s concerns, as follows:

1. With regard to whether there was any meaningful difference between the use of the word “residue” and “bequeathing” his “entire estate” to the University, the court found that since there were no specific gifts in the will, regardless of whether this was a specific bequest or residue, it made no difference as the entire net estate would be received by the University.

2. Gruber questioned the difference in referring to “establishing an endowment” and “bequeathing my entire estate to create a foundation”. In this case, the court found that the will provided an outright gift to the University rather than the establishment of a foundation that would be a formal trust or “nonprofit corporation” based on the intention inferred from the language of the will. The court stated as follows:

In Black's Law Dictionary, an endowment is defined as a “transfer, generally as a gift, of money or property to an institution for a particular purpose; [ ... ] the act of establishing a fund, or permanent pecuniary provision, for the maintenance of a public institution, charity, college, etc.” It defines a “foundation” as a fund established for charitable, educational, religious, research or other benevolent purposes. The Income Tax Act defines a charitable foundation as a “corporation or trust that is constituted and operated exclusively for charitable purposes.”

In this regard, the court reaffirmed the “armchair rule” for interpreting wills from Dice Estate and Robinson Estate, in looking to the plain meaning of the will and surrounding circumstances. The deceased’s intention to support peaceful coexistence between Jews and Arabs through an academic initiative was clear. The court held that the “assumptions” or criteria in the will to “guide” the allocation of funds were not binding conditions. The gift lacked the three certainties required for a trust, namely, certainty of intention, certainty of subject matter and certainty of object, of which, the certainty of intention was particularly lacking. “The list of assumptions specifically sets out that there may be peace in the Middle East and that the terms of the Will remain unchanged even after the signing of a peace treaty. Therefore, there is recognition that there must be flexibility because of potential changes in the Middle East and the State of Israel.” The use of terms like “foundation” and “endowment” was seen as colloquial and interchangeable, not technical. Also, the court found that the legal requirements to create a “nonprofit corporation” under the Income Tax Act were not addressed in the will.

3. Gruber was concerned about his own designation as a “trustee”, as it was unclear to him whether he was to act as a formal trustee administering the funds or in some other capacity, for example as an academic advisor. The court found that the purpose of “trustee” with reference to the endowment was intended to be academic rather than financial administration.

4. Finally, there was no explanation of what happens if the “assumptions” could not be met or whether they could be interpreted as conditions. Here, the court agreed with the University’s submissions that there was no use of the word “conditions” in the will and as such, an outright gift accompanied by the precatory wishes was made as opposed to legally binding conditions or restrictions.

Ultimately, the court ruled that the gift was not void for uncertainty and that the language used in the will did not establish a binding charitable purpose trust. Instead, the court found that the bequest constituted an outright gift to the University, with the accompanying “assumptions” interpreted as precatory in nature, reflecting the deceased’s wishes and moral guidance rather than imposing legal obligations. Of importance, the University also confirmed its willingness and ability to accept and administer the gift in a manner consistent with the deceased’s stated intention. 

​Read the June 2025 Charity & NFP Law Update