The recent Saskatchewan King’s Bench decision in Concentra Trust v Calvary United Church, displays the Court’s power to save a charitable gift in a Will, so that an estate gift still flows to another charitable object which closely resembles the testator’s original charitable object.

Background:

1. Patricia Kisil passed away on May 1, 2020. Her Last Will and Testament (“Will”) was made November 27, 2013. According to her Will:

1. Her cousin, Laura, was to receive 30 percent of the residue of her estate; and
2. The remaining 70 percent was to be held and invested for the benefit of her son, David.

2. While Laura survived Patricia, sadly David did not. Patricia’s Will provided a gift over if either Laura or David, or both of them, predeceased her.
3. Specifically, David’s share was to be divided amongst a number of charitable institutions. Among these charitable gifts, was a gift of 10 percent of the Estate residue to Wesley United Church, located in Prince Albert, Saskatchewan, for the church’s unrestricted use.
4. All of these charitable organizations were still operating at the time of Patricia’s death except for Wesley United Church. By the time Patricia died in May 2020, Wesley United Church had ceased operations. The land the church occupied on the corner of First Avenue East and 11th Street in Prince Albert had been sold to the YWCA.
5. The final church service had been held in the church on June 24, 2018. Wesley United Church was disbanded as of November 12, 2018, by vote of the Tamarack Presbytery. Wesley United Church’s charitable status was revoked on June 15, 2019.
6. At the time that Wesley United Church closed, the only other United Church in Prince Albert was Calvary United Church.
7. A number of former parishioners of Wesley United Church, including Laura Carment, joined Calvary United Church. Patricia did not, as Patricia’s health was failing, and sometime in mid 2019, Patricia moved to Mont St. Joseph Home, a seniors’ care home in Prince Albert.
8. Laura made no submissions on the application.
9. Counsel for Calvary United Church made submissions on the application. In counsel’s view, the gift to Wesley United Church could be saved by the cy‑prèsdoctrine and should go to Calvary United Church. A number of the members from Wesley United Church moved to Calvary United Church and that church continued the work of Wesley United Church in the Prince Albert district.

Issue:

The issue was whether the gift which was originally intended to Wesley United Church, could be saved and go to Calvary United Church.

Decision of the Court of Appeal:

The Court held that the 10 percent residue gifted to Wesley United Church was properly given instead to Calvary United Church in Prince Albert, Saskatchewan. As a result, the gift did not fail and go to intestacy.

What is the cy‑prèsdoctrine:

It is useful to understand the function of the cy‑près

When a testator leaves a gift to a charitable institution which later ceases to exist, the gift would ordinarily lapse, and go on intestacy. Intestacy is a legal framework that governs if some property is left in an estate, and there is no provision in a Will (or no Will at all) that governs how to dispose of that specific property. In intestacy, the property will go to various categories of family members of the deceased, as such categories are set out in the Intestate Succession Act, 2019.

However, the law permits Courts to use the cy‑prèsdoctrine to avoid an intestacy, provided that certain conditions are met. This doctrine allows the court to compose a scheme that would save a charitable gift from failing. In order for the Court to apply the cy‑prèsdoctrine, two conditions must be established:

1. That it is impossible, impractical or contrary to public policy to carry out the specific gift; and
2. That the testator, in making the gift, had a general or overriding charitable intent.

If these two conditions are satisfied, then the Court has the discretion to order a cy‑prèsscheme that keeps as close as possible to the testator’s original object.

However, a charity cannot use the cy‑prèsdoctrine to vary the terms of a will to effect a different charitable purpose than that intended by the testator. Under the cy‑prèsdoctrine, the court’s discretion is limited to ordering a scheme as close as possible to the testator’s original object.

The Court held that the gift to Wesley United Church should instead be given to Calvary United Church:
The Court held that the gift to Wesley United Church should be given to Calvary United Church. The Court relied on the below grounds.

First, the Court was satisfied that Patricia had a general charitable intention behind the gift to Wesley United Church. First, if Patricia had intended to gift over either Laura’s or David’s share to the other, or to benefit any of her other relatives, Patricia could have so provided, but she did not do so. Instead, Patricia was clear that if either, or both, Laura and/or David predeceased her, their respective gift would go to a range of charities listed in the gift‑over provision of her Will.

Second, Patricia’s gift to Wesley United Church was not for a specific use but rather for the church’s unrestricted use, as the church chose to designate. By utilizing this wording, the Court held that Patricia was expressing a general charitable intention for the advancement of the religious doctrines espoused by the United Church of Canada, for the betterment of the Prince Albert community.

Third, the Court noted that there was nothing in the gift‑over provision directing what was to happen to the gift to Wesley United Church, if the gift to Wesley United Church lapsed.

Conclusion:

The Court concluded that there were no conditions attached to the gift to Wesley United Church. Thus, Patricia had a broad and general charitable intention that the funds provided to all of the charities listed, would be for the benefit of the Prince Albert community where Patricia had spent much of her life.

The Court held that the doctrine of cy‑prèstherefore applied, and that Calvary United Church was the most appropriate recipient of the gift to Wesley United Church.

23 …. In my view, the charitable organization that most closely parallels Patricia’s original intention in her gift to Wesley United Church is Calvary United Church. It is the only remaining United Church in the Prince Albert district and, it, through the advancement of the United Church faith, is working for the benefit of the people of Prince Albert and district, the same people Patricia intended to benefit by her gift to Wesley United Church.

The Court therefore made the below Order:

1. The 10 percent residue payable to Wesley United Church in Prince Albert, Saskatchewan, set out in paragraphs 3(d)(v) of the Last Will and Testament of Patricia Kisil, dated November 27, 2013, shall be payable to the Calvary United Church in Prince Albert, Saskatchewan, for its unrestricted use.
2. The Estate of Patricia Kisil shall pay costs of $2,500.00 to Calvary United Church and $1,000.00 to Living Skies Regional Council forthwith. No costs shall be payable by the Estate to the United Church of Canada.