Superior Court of Justice — Ontario

Court File No.: CV-24-00717234-00ES
Date: 2025-06-03

Between:
Matthew Urback, Applicant
and
Canadian Cancer Society, Charlotte County Cancer Society Inc., Craig’s Cause Pancreatic Cancer Society, Kids with Cancer Society of Northern Alberta, Rofeh Cholim Cancer Society, Unmasking the Reality of Lung Cancer Society, Walkathon For Kids With Cancer Society, and The Public Guardian and Trustee, Respondents

Before: Justice Anna Papageorgiou

Counsel:
Kim Nguyen and Adrian Brooks, for the Respondents

Heard: 2025-06-03

Endorsement

Overview

[1] This is an application for the interpretation of the Will of David Dewling Moss (the “Deceased”) who passed away on January 21, 2024.

[2] Dietrich J. made various orders in support of the Application and appointed the Applicant as Estate Trustee. The remaining issues relate to whether or not the Canadian Cancer Society is the beneficiary of the estate pursuant to the Deceased’s will, properly interpreted, and whether there may be any other next of kin who could be beneficiaries.

Decision

[3] For the reasons that follow I grant the Application.

Issues

• Issue 1: Does the Holograph Will set out the testamentary wishes of the Deceased to leave the residue to the Canadian Cancer Society?
• Issue 2: Have potential beneficiaries been identified and served?

Analysis

Issue 1: Does the Holograph Will set out the testamentary wishes of the Deceased?

[4] I conclude that the Holograph Will sets out the Deceased’s testamentary wishes to benefit the Canadian Cancer Society.

[5] The Deceased lived at Journey Home Hospice (“Journey Home”) in Toronto, Ontario in late 2023. Journey Home assists individuals who are terminally ill and homeless or vulnerably housed.

[6] Staff at Journey Home helped him with general tasks from time to time including collecting some mail and other day-to-day activities.

[7] The Deceased had worked as a dishwasher or cleaner at a variety of employers. He was now retired and prior to living at Journey Hospice lived in community housing. The assets in his estate are worth approximately $100,000.

[8] The Deceased had no family. He advised Joanna Brownridge (“Ms. Brownridge”), a personal support worker at Journey Home, that, even if he did, he would not have wanted them to be beneficiaries of his estate. He told her that he wanted to give his estate to the “Canadian Cancer Society”.

[9] The Deceased attempted to make a handwritten will which was dated January 9, 2023 (the “Holograph Will”). He did so with Ms. Brownridge’s help. The Holograph Will stated that he wanted to leave his estate to the “Cancer Society” for research. It omitted the word “Canadian”, but Ms. Brownridge has given evidence that he told her he intended to benefit the “Canadian Cancer Society”.

The Law

[10] A testator may make a valid will wholly by their own hand and signature (a holograph) without the presence of a witness: Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”).

[11] The court will interpret a Will based on the following principles: Sorkos v. Cowderoy:

a. What was the testator's intention when he made the will?
b. How can the court give effect to the testator's intention based on the language used in the will and with regard to the entirety of the will?
c. The "arm-chair rule" — If the plain meaning of the words in the will do not enable an understanding of the testator's intention, what are the surrounding circumstances for the testator when the will was drafted? and
d. Under the "arm-chair rule", in light of all of the testator's knowledge of their assets, family structure, and familial relationships, what is the intention of the testator in making this will? Dice v. Dice Estate, 2012 ONCA 468 at paras 36-38.

[12] Only if the court is unable to determine the testator's subjective intention using this approach will it resort to technical rules of construction: Dice at para 59.

[13] The court has recognized that the expression of a testator's intentions is not always perfect. When the will needs to be interpreted, it is no longer possible to ask the testator for their intentions. Therefore, while the court may choose not to consider surrounding circumstances including the background of the testator to determine a testator's intention beyond the plain language of the will, the general approach in Canada is to take the surrounding circumstances into consideration, even when the will's language is not ambiguous: Robinson Estate v. Robinson, 2011 ONCA 493 at para 24; Dice at para 59.

[14] Courts will generally try to interpret a will in such a manner, if possible, to avoid a lapse of a gift and/or an intestacy: Romanic et al. v. La Fabrique de la Paroisse Sainte-Sophie et al., 2020 ONSC 3534, at paras. 12-14.

[15] In Waters' Law of Trusts in Canada, 4th Edition, 2012, the following is set out regarding the interpretation of a will in which a charity may be named incorrectly:

Difficulties can arise when the donor, as a testator, names a charitable institution. If he has named it correctly, then there is no problem, of course, but he may have referred to the intended institution by a shortened name used in casual speech or simply not have remembered the name correctly. There are numerous Canadian cases concerned with this difficulty. As a general practice the courts make every effort to discover which beneficiary was intended by the testator, and do not allow misdescription — either an imperfect or inaccurate description — to defeat the testator's intent. The same is true when the beneficiary is an institution, but in the case of charitable gifts the courts often seem to lean over backwards to avoid the finding that the intended institution cannot be discovered. The reason for this is that, if the institution cannot be discovered, and the court also reaches the conclusion that the testator intended to benefit the misnamed institution and that institution only, then the gift would have to fail. Whereupon the trust property would fall back into the estate.

As is the normal rule in the interpretation of wills, not only intrinsic but extrinsic evidence may be admitted to prove identity between the institution before the court and that intended.

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-près doctrine. A cy-près scheme is only needed when it is impossible to say which institution is intended to benefit.

[16] Section 21.1 of the SLRA states:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

[17] In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629, Justice Myers considered whether the questioned will "records a deliberate or fixed and final expression of intention as to the disposal of the deceased's property on death". In that case, the deceased prepared his own will but did not arrange to have it witnessed.

[18] Justice Myers found that the deceased intended for the document to be a will. As he stated: "[the deceased just blew the formalities. Fixing this type of mistake is precisely what s. 21.1 seems to be for.]"

[19] In Kertesz v. Kertesz et al., 2024 ONSC 7055, Justice Myers again was presented with a note prepared by an individual who knew death was imminent. It was unsigned. However, it was clear that the individual intended it to be a will. There was also no real doubt that this was indeed the individual's handwriting and the document was authentic.

[20] I agree that the case at bar is akin to the situations that Justice Myers was presented with in Cruz and Kertesz. It is clear, from Ms. Brownridge’s evidence, that the Deceased intended to make a will and intended to dispose of his property in this regard. It is clear that the document is in the Deceased’s handwriting and, while he did not sign it in the traditional sense, he wrote "I, David Moss" at the beginning of the document.

[21] In short, and to borrow Justice Myers' wording, on a balance of probabilities, the Deceased intended to record a fixed and final expression of his intentions, yet simply "blew" the formalities. This is exactly the kind of situation that s. 21.1 of the SLRA is designed to remedy.

[22] I note that the Applicant served all cancer societies in Canada that had the words “Cancer Society” in their name including the Charlotte County Cancer Society Inc., Craig’s Cause Pancreatic Cancer Society, Kids with Cancer Society of Northern Alberta, Rofeh Cholim Cancer Society, Unmasking the Reality of Lung Cancer Society, Walkathon For Kids With Cancer Society, and the Public Guardian and Trustee.

[23] No one opposed this Application.

[24] In any event, the Deceased demonstrated a charitable intention and 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: Dors et al. v. The Public Guardian and Trustee, 2023 ONSC 1503 at paras. 20-21.

[25] In cases where a charitable gift or bequest has become impossible or impracticable, the cy-près doctrine allows the court to apply the property to some other charitable purpose as near as possible resembling the original purpose. The cy-près doctrine may be used to direct the bequest to a charitable purpose similar to the purpose specified in the will: Dors at para 20.

[26] In this case even if the gift herein was impracticable or impossible, on a balance of probabilities the Deceased intended to benefit the Canadian Cancer Society, and if the Holograph Will fails and there are no other beneficiaries, then the Canadian Cancer Society would be the recipient of the Deceased’s estate by way of cy-près.

Issue 2: Have potential beneficiaries been identified and served?

[27] I am satisfied that the Applicant took efforts to identify the Deceased’s next of kin by doing various searches with ODSP, police records, police records in Newfoundland where he grew up and other efforts set out in the affidavit of Ms. Brownridge.

[28] They also prepared a notice on Notice Connect and no one has responded.

[29] The Applicant also learned that the Deceased had some accounts at a bank. The Applicant considered that there might be some reference to someone on bank records who was a next of kin but there were none.

[30] Order to go as requested.

Papageorgiou J.
Date: 2025-06-03