Decision Date: February 2, 2012
Link: Case Summary Document
Citation: [2012] BCSC 250 (Supreme Court of British Columbia, Griffin 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 the interpretation of the will of Gertrud Eberwein (the testatrix) who died in Vancouver in March 2010, aged 85 years. The estate was worth nearly $10 million dollars. The testatrix did not have any children, and her husband had predeceased her. Ms Eberwein left a will dated February 20, 2010 (the Will) in which her estate was to be distributed amongst family and friends in her native Germany, her deceased husband’s family in Bulgaria, various friends in British Columbia, various Canadian charities, and friends in Hawaii.

There were various issues of interpretation considered in the case. The issue of interest here was the interpretation of a gift in the Will to an organisation called Aid to Animals in Distress. Aid to Animals in Distress was a charity to which the testatrix had previously given small donations in 1998, 2000 and 2001 respectively. It operated a cat shelter. The charity ceased to exist in 2007, prior to the making of the Will in February 2010 and the date of the testatrix’s death in March 2010. Therefore, it was impossible to make the bequest.

Did this gift evince a general charitable intention such that, through the application of the cy-près doctrine, another charitable object could be benefited? Or did the gift lapse, thus falling into the residue of the estate?

The Attorney General of British Columbia, who has an historical jurisdiction over charities, was served with the petition materials in this proceeding, and filed a short response setting out the basic principles that apply. These principles are similar to those in Australia. Where it is impossible to carry out a gift, but it can be shown that the donor had a general charitable intent, the court has inherent jurisdiction to make an order for a cy-près scheme, for the property to be applied in a way as close as possible to that scheme set out by the testatrix. Was there a general charitable intent and was there another cat shelter that could be benefited in this case?

Her Honour said (at [44]):

It seems clear, from both the terms of the Will and the extrinsic evidence, that Ms. Eberwein loved cats. There is a term of the Will that ensures that there will be a caretaker for Ms. Eberwein’s own cats and a place for them to live until the end of 2012. Amongst the many charities she named in her Will for specific bequests was the SPCA, which further indicates that she had a fondness for the welfare of animals. The petitioner [the executor of the Will] has provided evidence about discussions that his wife… had with Ms. Eberwein concerning a shelter for hundreds of cats, located in Richmond. [The wife] volunteered at the cat shelter and Ms. Eberwein wished to visit it but never did because of her health at the time.

Her Honour noted that there were cases in favour of the proposition that if a will-maker showed an intention to make a gift to a particular institution, but that institution is no longer in existence at the time of the testator’s death, the gift will fail. There were also cases where the will-maker named one charity in her will as recipient of the residue of the estate, where the court was able to construe a general intention despite the wrong naming of a charity that never existed.

In this case, the will-maker made nine separate bequests to nine identified charities covering a range of subject matters, including the German Canadian Benevolent Society of British Columbia, the BC Cancer Foundation, and the Canadian Diabetes Association. She had named Aid to Animals in Distress specifically, and it was not a misnomer, but was a real charity to which she had donated in the past. Her Honour was therefore unable to conclude that the will-maker had a general charitable intent with respect to that gift. Her Honour said (at [47]):

Ms. Eberwein was clearly very specific about the naming of the charities in her Will. I am not satisfied she would have wanted the money to go to another charity if her gift to Aid to Animals in Distress failed.

Therefore, Her Honour concluded that the gift to Aid to Animals in Distress pursuant to clause 3(c)(viii) of the Will lapsed and formed part of the residue of the estate.

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Implications of this case

This Canadian case illustrates the difference between making a specific gift in a will and leaving a charitable gift in the residue of an estate. The latter could be imbued with a general charitable intention, but not the former. Charities in Australia always prefer to have bequests left as part or all of the residue of an estate to avoid just such problems as this case from British Columbia shows.