Link: Case Summary Document
Citation:  SKQB 214 (Queen’s Bench for Saskatchewan, Schwann J.)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This Canadian case concerned a will. The will was a five page typewritten document dated 7 July 2003. It was signed by the testator in the presence of two witnesses. The plaintiffs were appointed executors. Pursuant to the terms of the will, the testator made several specific bequests of personal property followed by the usual direction to convert the rest and residue of his estate into cash to be distributed equally in accordance with the following direction:
(A) …for the purpose of maintaining, feeding and caring for my pet animals, (but not any off-spring thereof) until their death (my pet animals presently consisting of four (4) cats)…
(B) Upon the death of the last of my pets, I direct that the remaining balance of the residue of my estate shall be divided into two (2) equal shares, to be distributed as follows:
(i) To give one share to five hills health region home care…
(ii) to give one share to the Canadian abortion rights action league (Caral) ….
There was also a codicil to the will. The codicil was a wholly handwritten document, much of it in poor handwriting to the point of being almost illegible. The date ‘April 19, 2011’ appeared at the top, with the signature of the testator appearing opposite the date. There were no witnesses, but evidence was given as to the authenticity of the handwriting. The testator made it clear in the codicil that his instructions in the will were continuing, but added in the codicil: ‘My cats come first’ … ‘After my expenses are paid then plenty of money for the cats….’.
This direction was followed by several specific bequests of personal property, which differed from dispositions made in the earlier will. No real property was devised under the will. However, under the codicil, a house and land were disposed of. In addition, the codicil provided that:
…The house will likely be used to pay for the cats home and the expenses. However it would be preferred to have [the executors] to pay all my expenses and then take ownership of the house this would give time to decide what to do with the house The (house) must not be sold until after the cats are comfortable.
Disposition and treatment of the residue also differed in the codicil. Under the codicil the residue was divided between:
- (CARAL) Canadian Abortion Rights Action League – emphasis on research $300
- To pay for sterilize and medicine for cats. M. Jaw Clinic $300
- Five Hills Home Care $300
- Eyebrow United Church $100
- These four last items can be deleted if money is low.
The plaintiff executors applied to have both the documents accepted for probate. The Saskatchewan Wills Act 1996 applied. Her Honour held that both documents were valid under the Act, but the question arose: did the codicil revoke the will? There were inconsistencies between the two documents, particularly relating to the use of the residue for the cats and for the named charities. The differences were summarised by Her Honour:
– trustees shall hold residue in trust and may use funds for the purpose of maintaining, feeding and caring for pet animals (4 cats) until their death.
– Trustees to consult with Dr. John Kessler as to placement and proper care and vet services
– Trustees to find a good home for pets with a private individual(s), Trustees pay amount necessary to provide for maintenance and care of pets.
2. Upon death of cats, balance of residue divided equally into 2 shares:
– ‘cats come first’
– ‘After my expenses are paid then plenty of money for the cats, including medical service and if deemed necessary declawing expenses’
2.. Balance of residue
– CARAL –$300
– To pay for sterilize and medicine for cats M. Jaw Clinic $300
– Five Hills Home Care $300
– Eyebrow United Church $100
These four last items can be deleted ‘if money is low’.
Her Honour held that the codicil revoked the provisions in the will as the distribution of the residue. In Her Honour’s view, the codicil was clear and unambiguous. However, that conclusion gave rise to further issues. The body known as ‘CARAL’ no longer existed, and the ‘M.Jaw Clinic’ was an unknown body. On this point, Her Honour said (at –):
Both instances, arguably, entail the creation of charitable trusts. In order to constitute a valid trust, three certainties must exist: certainty of intention, subject matter and objects. I find all three certainties exist in the circumstances. The testator’s intentions are clear with regard to both entities, the assets are derived from estate residue and the beneficiaries or objects are ascertained or ascertainable. A charitable institution which ceases to exist, or for that matter has not been specifically named, is not altogether uncommon in testamentary documents… Unfortunate wording employed by a testator will not defeat a charitable trust where the testator’s intention is evidenced from the testamentary instrument…In the case of both charities, I find the wording of the Will coupled with the wording in the Codicil reflect a general benevolent purpose rather than a gift of money to a specific charity simpliciter. Accordingly, the cy-pres doctrine can be applied by substituting another mode which gives effect as nearly as possible to the testator’s original intent.
Although, this disposed of the residue as it affected the named beneficiaries, there was still considerable residue remaining. Her Honour held that the balance would fall into intestacy under Saskatchewan’s Intestate Succession Act 1996. The executors were directed to distribute gifts of personalty and realty as directed, pay out all charitable gifts (except for M.Jaw Clinic which was unknown), reserve and set aside $10,000.00 as a fund for care of the cats (discussed below), and to thereafter apply for further directions concerning the remaining residue since it was possible that there were two relatives of the deceased who might have an interest in the estate.
As to the cats, Her Honour considered the issue of whether a charitable trust for the care of cats was valid. The law of Canada on this point is similar to that in Australia. Gifts for the maintenance of animals in general are charitable (such as to an animal charity). However, gifts for the maintenance of one or more particular animals are not. However, Her Honour found that there was case law to support the proposition that a non-charitable purpose trust for the upkeep of a given animal may be valid notwithstanding the fact that by its nature it is not enforceable by the beneficiary. Her Honour found that the trust was valid, and directed the executors to set aside the sum of $10,000 for the exclusive purpose of the care, maintenance and health of the testator’s cats. Her Honour directed that upon the death of the last of the four cats, the balance of the $10,000 fund (if any) should be disbursed as residue.
The case may be viewed at: http://www.canlii.org/en/sk/skqb/doc/2012/2012skqb214/2012skqb214.html
Implications of this case
This case illustrates a number of issues which can arise in relation to gifts in wills. There were two documents prepared by the testator, one of which at least partially revoked the other, there were gifts to charities which had ceased to exist, or which were misnamed (or perhaps did not exist at all), there was the need to apply charitable gifts cy-pres, and there was the issue of whether a valid gift could be given to the care of pets.
In Australia, although pets are often regarded as part of the family, leaving them a gift in a will is as problematical as it is in Canada. Animals cannot inherit from a will directly since they are classified legally as property, and have no capacity to hold money or property themselves (and no capacity to enforce a gift under a will). Therefore, there is a presumption that named beneficiaries will be persons, (i.e. individuals or incorporated entities). The only exception to this presumption is a legacy to an unincorporated association. However, although a gift cannot be left directly to a pet, it is possible to leave a bequest to the care of animals generally provided the bequest is for charitable purposes.