Tufford's Will, Re, (1984) 2 O.A.C. 45 (CA)

• Judge: Arnup, Blair and Weatherston, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 13, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 45 (CA)

Tufford's Will, Re (1984), 2 O.A.C. 45 (CA)

MLB headnote and full text

Re Tufford's Will

Indexed As: Tufford's Will, Re

Ontario Court of Appeal

Arnup, Blair and Weatherston, JJ.A.

February 13, 1984.

Summary:

In 1958 a testator made a will leaving the residue of his estate to his sister for her life and the remainder to the trustees of a certain Mennonite cemetery, the upkeep of which he was concerned with, because his relatives were buried there. Before his death in 1967 the cemetery was transferred to a town and the trustees of the cemetery ceased to exist. His sister died in 1981, when the estate was valued in excess of $250,000. The issues arose whether the gift to the cemetery lapsed and, if not, whether the excess over the cemetery's needs should go to the next of kin or be applied cy-près.

The Ontario High Court held that the gift to the cemetery lapsed, because at the date of the testator's death the trustees no longer existed and the cemetery was no longer being cared for by any Mennonite organization. The town appealed.

The Ontario Court of Appeal allowed the appeal and held that the gift did not lapse and that the surplus over the cemetery's needs should be applied cy-près to some other charitable scheme devised by the town.

Wills - Topic 3544

Charitable gifts - Cy-près - General charitable purpose - Requirement of - A testator left the residue of his estate to the trustees of a certain cemetery for the upkeep of the cemetery - The residue was more than sufficient to pay for the cemetary's upkeep and his next of kin claimed entitlement to the surplus - The Ontario Court of Appeal held that the surplus should be applied cy-près to some other charitable scheme, because the testator intended to dedicate the entire residue to charity - See paragraphs 11 to 18.

Wills - Topic 4048

Failure of gifts - Lapse - Charitable gifts - In 1958 a testator made a will leaving the residue of his estate to his sister for life with the remainder to the trustees of a Mennonite cemetery for the upkeep of the cemetery - Before his death in 1967 the cemetery was transferred to a town and the trustees ceased to exist - The sister died in 1981, when the issue of whether the gift of the cemetery lapsed arose - The Ontario Court of Appeal held that the gift to the cemetery did not lapse and should be held in trust for the maintenance of the cemetery with any surplus to be applied cy-près to some other charitable scheme - See paragraphs 1 to 10.

Cases Noticed:

Re Vernon's Will Trusts, Lloyd's Bank Ltd. v. Group 20 Hospital Management Committee (Coventry) (1962), [1972] Ch. 300, consd. [para. 8].

Re Ogilvy et al., [1953] 1 D.L.R. 44; [1952] O.W.N. 625, dist. [para. 9].

Re Allendorf, [1968] 2 O.R. 68, dist. [para. 9].

Re Boyd, [1969] 2 O.R. 562, appld. [para. 9].

Re Stanford, [1924] 1 Ch. 73, dist. [para. 11].

Re Monk, [1927] 2 Ch. 197, dist. [para. 12].

Re Anderson, [1943] 4 D.L.R. 268, dist. [para. 13].

Authors and Works Noticed:

Keeton, The Modern Law of Charities (2nd Ed. 1971), pp. 159 ff. [para. 14].

Stevens, Certainty and Charity, Recent Developments in the Law of Trusts, (1974), 52 Can. Bar Rev. 372, 384 [para. 15].

Tudor on Charities (6th Ed. 1967), pp. 284-286 [para. 14].

Counsel:

Rodney Hull, Q.C., for the Town of Lincoln, appellant;

R.N. Clark, Q.C., for the Public Trustee, appellant;

R.J. Rolls, Q.C., for Canadian Baptist Overseas Mission Board, respondent;

D.A. Thomas, for next of kin, respondents.

This case was heard on December 15, 1983, at Toronto, Ontario, before Arnup, Blair and Weatherston, JJ.A., of the Ontario Supreme Court, Court of Appeal.

Weatherston, J.A., delivered the following judgment for the Court of Appeal which was released on February 13, 1984: