Court File and Parties

COURT FILE NO.: CV-19-481 DATE: 2020-06-05

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JOSEPH JACQUES WILFRID CLAVELLE, also known as JACQUES CLAVELLE, also known as JAMES CLAVELLE, deceased

B E T W E E N:

SANDRA DAWN ROMANIC, Estate Trustee for the Estate of JOSEPH JACQUES WILFRID CLAVELLE, also known as JACQUES CLAVELLE, also known as JAMES CLAVELLE

H. Gladstone, for the Applicant

Applicant

- and -

LA FABRIQUE DE LA PAROISSE SAINTE-SOPHIE, LA FABRIQUE DE LA PAROISSE SAINT-ANTOINE

R. Clinker, for the Respondent La Fabrique de la Paroisse Sainte-Sophie

Respondents

HEARD: March 5, 2020 at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

REASONS FOR JUDGMENT

Overview:

[1] The deceased, Joseph Jacques Wilfred Clavelle was born in Sainte-Sophie, Quebec in 1919. He died on September 14, 2014 at the age of 95 years. His wife predeceased him in 2008. He died leaving no biological or adopted children. He was survived by his step-son, his step-son’s spouse (the Estate Trustee), one sister and numerous nieces and nephews.

[2] Mr. Clavelle was baptized at the church of the Respondent, La Fabrique de la Paroisse Sainte-Sophie (“Sainte-Sophie”). His family attended this church while he was growing up. After the death of his mother, and until the remarriage of his father, the deceased and his siblings lived temporarily under the care of their great-aunt, who was the Mother Superior of the Sisters of Providence. He had a religious upbringing and remained a devout follower of the Catholic faith throughout his life. He was a modest, frugal individual who made generous donations to various churches and religious endeavours throughout his life.

[3] Mr. Clavelle maintained a particular fondness for his home parish of Sainte-Sophie, even after moving from Quebec. It was ultimately his wish to be buried there at the family plot.

[4] Mr. Clavelle’s Last Will and Testament (the “Will”), dated August 29, 2012 left the residue of his Estate to the Paroisse Sainte-Therese-de-L’Enfant-Jesus (“Sainte-Therese”). The value of the residue is unknown. The total net value of the Estate is estimated to be approximately $500,000. The Will also provides for a gift of a modest home in the Township of Schreiber and $300,000 to the Estate Trustee.

[5] Sainte-Therese was created in 2001 through the amalgamation of the old Saint-Antoine parish (“Saint-Antoine”) and the old Sainte-Sophie parish. As of the date of the Will, Sainte-Sophie ceased to exist. The Sainte-Therese parish operated out of the site of the former Sainte-Sophie church.

[6] Approximately nine months before Mr. Clavelle’s death, in January 2014 the Sainte-Therese parish was dissolved, and two new parishes were created; the Respondents Saint-Antoine and Sainte-Sophie.

[7] The new Sainte-Sophie parish continued to operate out of the original Sainte-Sophie/Sainte-Therese church site, where the deceased had attended church as a child, and where he expressed a desire to be buried.

[8] Given that the beneficiary, Sainte-Therese did not exist on the date of death, the Estate brought this Application seeking direction from the Court. The question to be determine is who is entitled to the residue of Mr. Clavelle’s estate:

a) Sainte-Sophie;

b) Saint-Antoine;

c) An apportionment between Sainte-Sophie and Saint-Antoine; or

d) Should the gift lapse and the residue be paid to the next-of kin of the deceased pursuant to statutory intestate succession.

[9] The Estate Trustee takes no position as to what should happen with the residue. Saint-Antoine did not appear and took no position, despite being properly served. Sainte-Sophie takes the position that it should be the recipient of the residue.

[10] The next-of-kin of the deceased was his sister, Gertrude Kristiansen. Gertrude died shortly after the deceased. Gertrude’s daughter and an Estate Trustee of her estate, Eileen Kristiansen appeared by telephone and took no position with respect to the residue. Ms. Kristiansen did take issue with some of the factual background provided by the Estate Trustee, particularly with respect to the family background. I have noted and appreciate her corrections to the family background of the deceased. Ms. Kristiansen further expressed concern with respect to the gifts made to the Estate Trustee in the Will and the potential for there having been undue influence. She confirmed that no challenge to the Will has been made or will be made.

[11] Upon reviewing the evidence of the Estate Trustee, and hearing submissions from counsel for Sainte-Sophie and from Ms. Kristiansen, I find that Sainte-Sophie is entitled to the residue of the Estate. I am satisfied that this is the result that best honours the wishes of the testator and the charitable purpose of the Will.

Analysis:

General Legal Principles re Interpretation of Wills:

[12] A bequest in a Will, may lapse (or fail) if it cannot be fulfilled. In this case, the bequest cannot be fulfilled because the parish of Sainte-Therese has been dissolved. However, the bequest may be saved through the application of successorship principles [See: Fort Sackville Foundation v. Darby Estate, 2010 NSSC 27 at para. 3] or the cy-près doctrine [See: Re Boyd, [1969] 2 O.R. 562, 6 D.L.R. (3d) 110 at paras. 18-22].

[13] Courts will generally try to interpret a Will in such a manner, if possible, as to avoid a lapse of a gift and/or an intestacy. When possible, the intentions of the testator and general charitable purpose of the Will should be carried out. See: Re Voorhees, 1979 CarswellOnt 588 (Ont. H.C.) at para. 5.

[14] In interpreting a Will, the court should consider all the surrounding circumstances, including the background of the testator to attempt to determine his true intentions with respect to the disposition of property. See: Re Kaptyn Estate, 2010 CarswellOnt 5804 (Ont. S.C.J.) at para. 30, and Ukrainian Youth Association of Canada v. Galandiuk Estate, 2001 CarswellOnt 5001 (Ont. S.C.J.) at para. 5.

Law of Successorship:

[15] Sainte-Sophie argues that it is a successor to Sainte-Therese and is therefore entitled to the gift of the residue provided for in the Will based on succession principles. I disagree.

[16] While a court should take a broad approach to legal successorship, the approach is not so broad as to permit the court to find a successor for an entity that has ceased to exist. That is exactly the case here. There is no doubt that Sainte-Sophie and Sainte-Therese are closely related. Sainte-Therese gave way to the new Sainte-Sophie and new Saint-Antoine. Sainte-Sophie operates the church and parish that was once operated by Sainte-Therese. However, Sainte-Therese did not merely change names; it dissolved and appears to have transferred assets to Sainte-Sophie and possibly Saint-Antoine, which are also the two parishes that originally amalgamated to form Sainte-Therese.

[17] This issue was considered by the Nova Scotia Supreme Court in Fort Sackville Foundation v. Darby Estate. At paras. 11-13 of the decision, and in reference to excerpts from W. M. Waters, Waters' Law of Trusts in Canada, 3rd ed. (Toronto: Thomson Carswell, 2005), Justice Moir stated:

11 We can find "apparently defunct institution...in an existing institution" through "amalgamations, schemes, absorptions, or change of name, organization or its work", but we cannot do that if the apparently defunct institution "has indeed ceased to exist" (p. 768). The caselaw to which Ms. Jardine referred is consistent with this view of the law.

12 The Bedford Heritage Society ceased to exist. It and the Fort Sackville Foundation did not choose amalgamation, or some similar scheme. The society chose unequivocally to terminate itself. That is, it dissolved under s. 26 of the Societies Act, R.S.N.S. 1989, c. 435.

13 Therefore, Fort Sackville Foundation is not the successor of the Bedford Heritage Society.

[18] If Sainte-Therese had successors, it would be both Sainte-Sophie and Saint-Antoine; but it did not. Sainte-Therese ceased to exist, and two new entities were created. The gift cannot be saved on succession principles.

Cy-Près Doctrine:

[19] The question then becomes whether the doctrine of cy-près applies to save the gift.

[20] As the British Columbia Supreme Court explained in McGregor Estate, Re, 2014 BCSC 896 at paras. 19 and 20:

19 It sometimes happens, as in this case, that testators leave a legacy to an institution which later ceases to exist. When that happens, the gift either lapses and falls to be distributed on an intestacy, or comes under the cy-près doctrine. The doctrine of cy-près applies to save the gift where the court can infer that the testator intended to devote that property to a general charitable purpose: see Buchanan Estate, Re (1996), 11 E.T.R. (2d) 8 (B.C.S.C.), affirmed (1997), 44 B.C.L.R. (3d) 283 (B.C.C.A.).

20 Cy-Près means “as near as” possible; according to the Court of Appeal in Buchanan Estate, in cases where a charitable gift or bequest has become impossible or impracticable, it allows the court to apply the property to some other charitable purpose as nearly as possible resembling the original purpose.

[21] Simply put, cy-près may be used to direct the bequest to a charitable purpose similar to the purpose specified in the Will. See: Conforti v. Conforti, 1990 CarswellOnt 495 (Gen. Div.) at para. 14.

[22] The cy-près doctrine may be used by the court to direct a gift in a Will to an institution or organization other than the one named in the Will if:

a) the gift in the Will is impractical or impossible;

b) the testator manifested a general charitable intention in making the gift in the Will; and

c) the gift to the alternative institution or organization would be a gift resembling the initial purpose of the gift in the Will.

See: McGregor Estate, Re at paras 22-24 and Ukrainian Youth Association of Canada v. Galandiuk Estate at para. 20.

[23] Applying these principles to the case at hand, I find that the gift of the residue in the Will to Sainte-Therese is impossible to carry out. Sainte-Therese ceased to exist as a formal entity when it was dissolved on or about January 10, 2014.

[24] The question then becomes whether there was a general charitable intention manifested in the making of the gift. In answering this question, it must be determined whether the testator in his gift was naming a specific beneficiary or was referring to the purposes for which that institution exists.

[25] The court may infer a general charitable intention when a gift of residue to a charitable organization does not provide for a gift over on its failure. Because the testator did not address what would happen in the event of lapse, the court is entitled to infer that he planned that the money would go forward for is general charitable purpose. See: McGregor Estate, Re at para. 34, and Re Buchanan Estate, 1996 CarswellBC 383 (S.C.) at para. 23.

[26] Upon reviewing the terms of the Will and considering the evidence with respect to the circumstances of Mr. Clavelle, I find that the Will does manifest a general charitable intention. The testator was a devout Catholic. He and his family had long-standing ties and an affinity for the Sainte-Sophie parish, where the family burial plot remains and, where the testator chose to be buried himself. He chose to benefit the work of this parish in his Will. At the time of the making of the Will, the work of that church was carried out by the parish of Sainte-Therese.

[27] I also note that there is no gift over or alternate residual beneficiary named in the Will. I infer that the testator planned that the funds would be used for the general charitable purpose specified.

[28] I further find that directing the gift of the residue to the new Sainte-Sophie parish would be a gift that best resembles the initial purpose of the gift in the Will. As stated above, Mr. Clavelle and his family had significant historical ties to the original Sainte-Sophie parish. Mr. Clavelle considered the Sainte-Therese parish to be one and the same as the old Sainte-Sophie. Sainte-Therese carried out the work of the old Sainte-Sophie parish. The new Sainte-Sophie parish now continues that work. Furthermore, the address for Sainte-Therese in the Will is the same as the old, and now the new Sainte-Sophie parish.

[29] The evidence is also that throughout Mr. Clavelle’s lifetime he donated money to charitable and religious organizations to which he had personal ties. He had close personal ties to Sainte-Sophie and no known personal ties to Saint-Antoine.

[30] It is clear to me that the effect of not directing the gift of the residue of Mr. Clavelle’s estate to the new Sainte-Sophie parish would be to defeat his clear intentions. I am satisfied that in Mr. Clavelle’s mind Sainte-Sophie continued to exist as Sainte-Therese. It is once again Sainte-Sophie and is entitled to the residue of Mr. Clavelle’s estate.

[31] An Order shall issue directing the gift of the residue in the Last Will and Testament of Joseph Jacques Wilfrid Clavelle dated August 29, 2012 to La Fabrique de la Paroisse Sainte-Sophie.

Costs:

[32] The Estate Trustee and Sainte-Sophie seek costs payable out of the Estate as follows:

a) The costs outline submitted on behalf of the Estate Trustee seeks costs of $25,779 inclusive of fees, disbursements and H.S.T.;

b) Sainte-Sophie seeks costs of $7,500, representing the estimated full indemnity amount. The costs outline submitted on behalf of Sainte-Sophie shows substantial indemnity costs of $6,768 inclusive of fees, disbursements and H.S.T.

[33] All parties agree that costs should be payable from the Estate. Neither disputes the costs outline of the other. Costs shall be payable from the Estate as follows:

a) To the Estate Trustee, the sum of $25,000. The Bill of Costs of the Estate has been reduced slightly for the estimated cost of the hearing of the Application. The Estate took no position on the Application. The costs for preparation for argument have been reduced; and

b) To Sainte-Sophie, the sum of $6,768. Substantial indemnity costs are appropriate for the beneficiary on this application.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: June 5, 2020