Charities will do well to remember the recent decision of an Ontario court, in which a testator left 16 per cent of the residue of his estate to “The Institute for Crippled Children.” No such institute was found to exist. However, three institutions, namely The Shriner’s Hospital for Crippled Children (Montreal), the Hugh MacMillan Rehabilitation Centre (known at the date of the will as the “Ontario Crippled Children’s Centre”) and the Ontario Society for Crippled Children (OSCC). all claimed the benefit.

National Trust, the executor of the estate, asked the court for advice as to how to proceed. The donor left the entire residue of his estate to various charities. The will was handwritten and contained several incorrect descriptions of the charitable beneficiaries, all of which were resolved, with the exception of the bequest to the Institute for Cripple Children.

The donor had been a member of the Masonic Order for more than 50 years. However, the absence of any reference to “Shriners”, “Hospital” or “Montreal” in his will eliminated the Shriner’s Hospital as an eligible beneficiary. Similarly, with no evidence of a link between the donor and the Ontario Crippled Children’s Centre, the latter claim also failed.

The specific charities listed were all local to the Seaforth, Western Ontario area, with no demonstrated charitable activity in the Toronto or Montreal areas. In addition, the court recognized that the Ontario Society for Crippled Children has a wide range of charitable services which are less hospital-focused than the other charities, and engages in visible charitable work in the Seaforth area. In the end, the court decided that the donor’s clear intent was to benefit the Ontario Society for Crippled Children.

Although “misdescription” was common throughout the will, the OSCC’s claim was weakened by that fact. Each of the parties was awarded a portion of their costs. The costs of the three competing charities were charged against the share of the residue to be distributed to the OSCC, and not to the share of other charities named in the will. The court found that, since all three claimants supported crippled children, “any enthusiasm for litigation at the expense of others ought to be tempered with a view to preserving the disputed fund for the benefit of the beneficiary.”