The British Columbia Supreme Court has recently opined on when a
Court can remedy the misdescription of a beneficiary in a will.
In Baliko Estate v. Baliko, 2013 BCSC 2485 (B.C.S.C.), per
Schultes J., a clause in a will purported to leave the residue of
the estate to the "Kelowna General Hospital". The will
explicitly excluded the testator's son. However, no actual
legal entity was capable of receiving the gift of the estate's
residue. That is, a government organization, the Inland Health
Authority (IHA) owned the building and operated the Hospital. The
Kelowna General Hospital Foundation (the "Foundation")
was a charitable organization that was created to receive donations
and raise funds on behalf of the Hospital.
On a petition by the executor of the Estate, the IHA argued that
the Foundation ought to receive the residue of the estate. By
contrast, the testator's son argued that the gift failed as a
result of being granted to a non-existent entity and, accordingly,
he ought to receive the residue of the estate on an intestacy.
The British Columbia Supreme Court held that the gift was to go
to the Foundation. The Court held that Canadian Courts make every
effort to discover which beneficiary was intended by the testator;
they do not allow a misdescription to defeat the testator's
intention. Accordingly, citing Waters' Law of Trust in Canada,
3rd ed. (Toronto: Thomson, 2005), the Court took the view that
"if the description is sufficient with reasonable certainty to
designate the intended beneficiary, the institution in that
position is the intended recipient...If the beneficiary intended by
the testator is thus discoverable, the courts have said on several
occasions that there is no need to invoke the cy-prés
In this case, in the absence of any similarly named organization
or any competing entity that fulfills an equivalent purpose, the
Court placed itself in the testator's shoes and held that no
other reasonable interpretation was possible other than that the
testator intended to benefit the Hospital. Unlike other cases that
involve non-existent or defunct societies as beneficiaries, in this
case the gift could easily be received through the vehicle of the
Hospital's charitable entity, i.e. the Foundation.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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