Fort Sackville Foundation v. Darby Estate, 2010 NSSC 27

• Judge: Moir, J.
• Court: Probate Court of Nova Scotia (Canada)
• Case Date: December 17, 2009
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 27;(2010), 287 N.S.R.(2d) 158 (ProbCt)

Fort Sackville Fdn. v. Darby Estate (2010), 287 N.S.R.(2d) 158 (ProbCt);

    912 A.P.R. 158

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. FE.017

The Fort Sackville Foundation (applicant) v. Ross E. Hallett, in his capacity as personal representative of the Estate of John Darby (respondent)

(Hfx No. 315095 and Probate No. 56651; 2010 NSSC 27)

Indexed As: Fort Sackville Foundation v. Darby Estate

Nova Scotia Probate Court

Moir, J.

January 22, 2010.

Summary:

Darby made a will in 2007 and died less than a year later. He made a gift of his residence and the contents to the "Heritage Society of Bedford". That society had disposed of its assets and surrendered its certificate of incorporation some years before the will was made. The Fort Sackville Foundation claimed to be the successor of the society. The personal representative and trustee of the estate opposed the claim. Beneficiaries supported the position taken by the estate.

The Nova Scotia Probate Court dismissed the Foundation's application. The Foundation was not the successor of the society, and cy-près could not be applied to the gift. The conditions of the gift and the consequences of their not being fulfilled were expressed in the will. Those conditions had not been and could not be fulfilled. Therefore, the gift was lapsed and the residence and contents were part of the residue.

Wills - Topic 3525

Charitable gifts - Vesting - Whether legatee ceased to exist or operate - Darby made a will in 2007 and died less than a year later - He made a gift of his residence and the contents to the "Heritage Society of Bedford" - In 1988, some members of the society had taken steps to incorporate the Fort Sackville Foundation, the main purpose of which was to lease and maintain a historical site in Bedford - The Foundation also began work similar to that of the society - In 2005, the society surrendered its certificate of incorporation, and transferred its property to the Foundation - The Foundation claimed to be the successor of the society and laid claim to the gift - The estate opposed the claim - The Nova Scotia Probate Court dismissed the application - The Foundation was not the successor of the society - The society ceased to exist - It and the Foundation did not choose amalgamation, or some similar scheme - The society chose unequivocally to terminate itself, i.e., it dissolved under s. 26 of the Societies Act - "The courts take a broad approach to legal successorship, but that approach is not so broad as to allow the court to find a successor for an entity that has ceased to exist" - See paragraphs 4 to 13.

Wills - Topic 3543

Charitable gifts - Cy-près doctrine - Circumstances when doctrine applied - Darby made a will in 2007 and died less than a year later - In clause 4(L), he made a gift of his residence and its contents to the Heritage Society of Bedford "to commemorate the merchant marine who sailed out of Bedford Basin during World War II", but there were several conditions - Clause 4(L) expressly provided that if certain commitments were not made within a year, the gift was cancelled and went to others - In 1988, some members of the society had incorporated the Fort Sackville Foundation, which began work similar to that of the society - In 2005, the society dissolved, and transferred its property to the Foundation - The Foundation could not make the required commitments under clause 4(L), but laid claim to the gift - The estate opposed the claim - The Nova Scotia Probate Court dismissed the application - The Foundation was not the society's successor, nor could cy-près be applied to the gift - It did not meet either of the fundamental conditions for cy-près: (1) it was not "impossible or impracticable to effect": effect could be given to clause 4(L) by enforcing the alternative gift to residual beneficiaries; and (2) the gift had too narrow a focus to be taken for a general charitable intention: the "charitable light" was eclipsed by the condition that the home be maintained as a heritage property, otherwise, it was to be sold and the proceeds were to go to the residue - The gift lapsed, as the conditions had not been and could not be fulfilled, and the property was therefore part of the residue - See paragraphs 14 to 30.

Wills - Topic 3544

Charitable gifts - Cy-près doctrine - Requirement of general charitable purpose - [See Wills - Topic 3543 ].

Wills - Topic 4048

Failure of gifts - Lapse - Charitable gifts - [See Wills - Topic 3543 ].

Wills - Topic 8007

Construction - Conditional gifts - General principles - Conditions precedent - Compliance - [See Wills - Topic 3543 ].

Cases Noticed:

Chisholm, Re (1977), 29 N.S.R.(2d) 173; 45 A.P.R. 173 (T.D.), refd to. [para. 20].

Smith, Re, 1963 NSSC 7807, refd to. [para. 20].

Fraser Estate, Re (2000), 191 Nfld. & P.E.I.R. 76; 577 A.P.R. 76; 2000 PESCTD 27, refd to. [para. 22].

Authors and Works Noticed:

Hanbury and Maudsley, Modern Equity (13th Ed. 1989), generally [para. 22].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 765 to 768 [para. 10]; 768 [para. 21]; 773 [para. 19].

Counsel:

Lyndsay Jardine, for the applicant;

Kevin Gibson, for the respondent;

Timothy C. Matthews, Q.C., for the Canadian National Institute for the Blind, the Canadian Cancer Research Society, and the Board of Governors of McGill University.

This application was heard on December 17, 2009, in Halifax, Nova Scotia, by Moir, J., of the Nova Scotia Probate Court, who rendered the following decision on January 22, 2010.