Kunze Estate, Re, 2005 SKQB 212

• Judge: G.A. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 09, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKQB 212;(2005), 263 Sask.R. 248 (QB)

Kunze Estate, Re (2005), 263 Sask.R. 248 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MY.047

In The Matter Of the Estate of Henry Kunze, deceased;

In The Matter Of the Estate of August Joseph Scholz, deceased

(2003 Q.B. No. 331; 2005 SKQB 212)

Indexed As: Kunze Estate, Re

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

G.A. Smith, J.

May 9, 2005.

Summary:

The wills of two deceased testators each provided for the creation of a charitable trust fund after the termination of the life interests in the residue of the estate. One half of the income from each fund was to be paid to the "Catholic Orphanage in the City of Prince Albert" and the other half was to be paid as a scholarship for a child or children of the orphanage. At the time that the wills were executed, the Catholic Orphanage of Prince Albert was operating as a residential school. By the time that the holder of the life interest in the residue of the estates died, the Catholic Orphanage of Prince Albert still existed as a corporation, but it no longer had children in its care and was no longer active in its previous mandate. The executor/trustee applied for, inter alia, directions in relation to the administration of the trusts in view of the fact that the Catholic Orphanage of Prince Albert was no longer providing services to orphans or any other children.

The Saskatchewan Court of Queen's Bench held that the cy-près doctrine applied and that the court had jurisdiction to devise a cy-près scheme. The court ordered that one half of the income from the charity funds be paid to La Corporation Episcopale Catholique Romaine de Prince Albert to support programs in the community school system and that the other half be paid as a scholarship to a student(s) of a school administered by La Corporation Episcopale Catholique Romaine de Prince Albert. The court also granted the executor/trustee's request to amalgamate the two funds and to charge its regular fees for the administration of the amalgamated fund.

Wills - Topic 3543

Charitable gifts - Cy-près doctrine - Circumstances when doctrine applied - [See Wills - Topic 3546 ].

Wills - Topic 3546

Charitable gifts - Cy-près doctrine - Choice of institution with similar objects - The wills of two deceased testators each provided for the creation of a charitable trust fund after the termination of the life interests in the residue of the estate - One half of the income from each fund was to be paid to the "Catholic Orphanage in the City of Prince Albert" and the other half was to be paid as a scholarship for a child or children of the orphanage - When the wills were executed, the Catholic Orphanage of Prince Albert operated as a residential school - By the time that the holder of the life interest in the residue of the estates died, the Catholic Orphanage of Prince Albert still existed as a corporation, but it no longer had children in its care and was no longer active in its previous mandate - The Saskatchewan Court of Queen's Bench held that the cy-près doctrine applied on the basis of supervening impracticability or impossibility - The court had exclusive jurisdiction to devise a cy-près scheme, although the advisory participation of the Attorney General of Saskatchewan was appropriate and welcome - The court ordered that one half of the income from the amalgamated charity funds be paid to La Corporation Episcopale Catholique Romaine de Prince Albert to support programs in the community schools system and that the other half be paid as a scholarship to a student(s) of a school administered by La Corporation Episcopale Catholique Romaine de Prince Albert.

Cases Noticed:

Income Tax Commissioners v. Pemsel, [1891] A.C. 531 (H.L.), refd to. [para. 18].

Brown, Re, [1950] 1 D.L.R. 777 (N.S.S.C.), refd to. [para. 26].

Edwards, Re (1911), 18 O.W.N. 765, refd to. [para. 26].

Bezpalko Estate, Re (1979), 26 A.R. 131; 106 D.L.R.(3d) 290 (Q.B.), refd to. [para. 27].

Moggridge et al. v. Thackwell et al., [1803-13] All E.R. Rep. 754, refd to. [para. 31].

Conroy, Re, [1973] 4 W.W.R. 537 (B.C.S.C.), refd to. [para. 33].

Montreal Trust Co. v. Richards, [1983] 1 W.W.R. 437 (B.C.S.C.), refd to. [para. 33].

Gray Estate, Re (1999), 7 B.C.T.C. 161; 26 E.T.R.(2d) 42 (S.C.), refd to. [para. 33].

British Columbia (Official Administrator) v. Ridge Meadows Association for Community Living - see Gray Estate, Re.

Authors and Works Noticed:

Waters, Donovan W.M., The Law of Trusts in Canada (1st Ed. 1974), pp. 522-523 [para. 22]; 529-530 [para. 23].

Counsel:

Tammi D. Hackl, for the Bank of Nova Scotia Trust Company;

Mitchell J. Holash, for Bishop, Prince Albert Diocese of the Roman Catholic Church;

Darryl J. Brown, for the Attorney General for Saskatchewan.

This application was heard before G.A. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on May 9, 2005.