In a recent Manitoba case Dickson v. The Humane Society of Canada for the Protection of Animals and the Environment et al. in deal with a person who left money to various charities. One of those charities lost their status and also was not operating. The court ruled that the charity is not entitled to the bequest. This case will be of interest to lawyers and others dealing with wills and estates. The case is cited in an Australian case notes series that deals with charities: ACPNS Legal Case Notes Series: 2021-141 Dickson v. The Humane Society of Canada for the Protection of Animals and the Environment et al
Here is the text of the case:
Date: 20210917
Docket: PR 19-01-13766
(Winnipeg Centre)
Indexed as: Dickson v. The Humane Society of Canada
for the Protection of Animals and the Environment et al.
Cited as: 2021 MBQB 200
COURT OF QUEEN’S BENCH OF MANITOBA
B E T W E E N:
IN THE MATTER OF: THE ESTATE OF MARLENE ETHEL DICKSON
ROBERT DICKSON, AS EXECUTOR OF THE ESTATE OF MARLENE ETHEL DICKSON, applicant,
– and –
THE HUMANE SOCIETY OF CANADA FOR THE PROTECTION OF ANIMALS AND THE ENVIRONMENT, HEART AND STROKE FOUNDATION OF CANADA, AND THE PUBLIC GUARDIAN AND TRUSTEE OF MANITOBA, AS LITIGATION GUARDIAN OF KALE DICKSON, respondents.
Counsel:
Michael J. Stienstra for the applicant
William V. Sasso for the respondent, The Humane Society of
Canada for the Protection of Animals and the Environment
Anita L. Southall and David A. Thiessen for the respondent, Heart and Stroke Foundation of Canada
Jana Taylor for The Public Guardian and Trustee of Manitoba
JUDGMENT DELIVERED: September 17, 2021
McCAWLEY J.
[1] Robert Dickson, as Executor in the Estate of the late Marlene Ethel Dickson, brings a motion for the advice and direction of the court with respect to the distribution of the residue of the estate.
[2] Ms. Dickson (the “Testatrix”) passed away on February 5, 2019. Her will gifted the residue of her estate to five individuals and the following three charitable organizations:
(a) Twenty (20%) percent to the Alzheimer Society of Manitoba;
(b) Ten (10%) percent to the Heart and Stroke Foundation of Canada; and
(c) Ten (10%) percent to the Humane Society of Canada.
[3] Also included in her will was a contingency clause which provided:
Should any of the organizations who are residual beneficiaries cease to exist at the time of my death, then that share shall be divided pro rata among the other residual beneficiaries.
[4] The Testatrix made her will on October 24, 2014. On March 19, 2016, the Humane Society of Canada for the Protection of Animals and the Environment (the “Society”), had its charitable status revoked although its business name remained registered as a not-for-profit organization. Of note is that, related to the Society, is the Humane Society of Canada Foundation (the “Foundation”), which has the same board of directors as the Society. Its charitable status was revoked on May 15, 2021.
[5] The question to be determined by the court is whether the Society had ceased to exist at the time of the Testatrix’s death such that its share of the residue should be divided pro rata among the other residual beneficiaries. This determination necessarily involves an interpretation of the provisions of the will including a consideration of what the subjective intention of the Testatrix was. In order to determine this the court must look at the words used in the context of the circumstances known to the Testatrix at the time of signing the document and whether the words are ambiguous. (Zindler v. Salvation Army, 2015 MBCA 33, 319 Man.R. (2d) 16 at para. 8).
[6] It is the position of the Society that, since the business name of the Society was registered at the relevant time, the Society had not ceased to exist.
[7] It is the position of the Heart and Stroke Foundation of Canada and the Public Guardian and Trustee of Manitoba (the latter representing the interests of a minor residual beneficiary) that the Society had ceased to exist in any operational sense and accordingly the Testatrix’s gift to it fails and its share should be divided pro rata among the other residual beneficiaries.
[8] I accept the arguments put forward by the Heart and Stroke Foundation of Canada and the Public Guardian and Trustee of Manitoba in their entirety. In so finding I rely on the following facts:
- the Society lost its charitable status on March 19, 2016;
- the Foundation is currently the registrant of the business name “The Humane Society of Canada” having first registered the business name on April 19, 2016;
- the evidence filed by the Society refers to the Foundation as the “successor” to the Society;
- on May 15, 2021, the Foundation had its charitable status revoked;
- the Society’s bank accounts have been closed and it has not filed financial statements for some time;
- the Society’s website appears not to have been updated dated since 2019;
- a new charity is being created to carry out the purposes of the Society.
- the existence of a contingency clause in the will providing for the event that one or more of the charitable organizations could have ceased to exist at the time of the death of the Testatrix; and
- the clear wording of the will.
[9] In order to accept the position taken by the Society, one would have to find that the Testatrix’s intention at the time of making her will was to provide a gift to a charitable organization which, for all intents and purposes, had ceased to function and existed in name only. Common sense would suggest otherwise.
[10] I adopt the reasoning in Bank of Nova Scotia Trust Co. v. Common Ground Women’s Centre, 2010 ONSC 63, and find that, for the purposes of this will, the Humane Society of Canada for the Protection of Animals and the Environment ceased to exist.
[11] With respect to costs, the Executor and the Heart and Stroke Foundation of Canada, which advanced the litigation, shall be awarded costs on a solicitor and client basis and the Public Guardian and Trustee of Manitoba on a tariff basis, payable out of the estate.
McCawley J.