2008 BCSC 1185 Johnston Estate (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Johnston Estate (Re),*
	2008 BCSC 1185

Date: 20080829
Docket: 27908
Registry: Penticton

Re: The Estate of Margaret Mary Johnston,
also known as Margaret Johnston, Deceased

Before: The Honourable Mr. Justice Barrow

Reasons for Judgment

Counsel for the Petitioner:	T.A. Duerr
Counsel for the Workers of the Ministry:	T.A. Kampman
Date and Place of Hearing:	July 28, 2008
	Kelowna, B.C.

[1] Margaret Mary Johnston died in Oliver on May 2, 2003. She was predeceased by her husband, Gordon Johnston, and had no children. Her closest relatives are four sisters and a brother, all of whom live in Australia. On January 27, 2000, she made her last Will and Testament. By that Will, she appointed Gordon Olson as executor of her estate. She left cash bequests totalling $50,000 to three of her friends and directed her trustee dispose of her personal belongings as he saw fit. The Will itself makes no provision for the residue of her estate, but in a separate document entitled “special bequests”, which she left with her Will, she wrote:

Any remaining funds that are left from my estate I desire to be used for medical purposes for the workers in the ministry or for any other of their needs.

It is this bequest that gives rise to the application before the court.

[2] The Will, including the special bequest, was proved in solemn form on May 2, 2005, and admitted to probate.

[3] The residue of Mrs. Johnston’s estate amounts to something over $550,000 in cash or near cash assets.

[4] The petition now before the court was filed on May 23, 2006. It has been served on Mrs. Johnston’s surviving relatives, but none of them have appeared or otherwise shown an interest in the matter. By order dated November 22, 2007, Walter Burkenshaw was appointed the representative of the “workers of the ministry” for purposes of this matter, and he has filed affidavit material on this application.

[5] The petitioner, Mr. Olson, has applied for the opinion, advice and direction of the court in relation to the administration of the residuary bequest. In particular, he seeks answers to the following questions:

1. Are the “workers” in the ministry an ascertainable beneficiary of the testamentary gift?

2. Are the “workers” in the ministry one and the same as the “workers” in the ministry of the Christian Fellowship?

3. Is the testamentary gift of the residue a valid charitable trust?

4. If the gift is otherwise valid:

a. From or for what period of time did the testatrix intend to include the “workers” in the ministry?

b. Did the testatrix intend to benefit “workers” in the ministry in British Columbia only, or did she intend to include all workers in that ministry?

c. What constitutes “medical purposes of the workers” and what did she mean by “or for any other of their needs”?

5. How is the executor to give notice to the “workers” in the ministry who are beneficiaries under the Will?

6. Who should be designated as the representative of the “workers” in the ministry?

7. If the gift is not payable to the “workers” of the ministry of the Christian Fellowship, does the gift disclose a general charitable intent, such that through the application of the cy-pres doctrine another charitable object may be benefited, or does the gift lapse and thus pass on intestacy?

[6] For the reasons which follow, I am satisfied that the testatrix intended to, and did, create a valid charitable trust. I will address the issues raised on the petition in a general way in what follows and adjourn the issue of the more particular issues regarding the administration of the trust pending further submissions. Before doing that, however, I will set out the background to this matter.

Background

[7] Mr. Olson knew Mrs. Johnston and her husband for over 30 years. During that time, all three belonged to the same worship fellowship. The fellowship is known as the Christian Fellowship and is a non-denominational group devoted to a particular view of the tenets of the Christian faith. It is organized after a fashion, but it is neither incorporated as a society nor does it otherwise have a legal existence. This is not by accident or oversight but rather flows from the beliefs to which the members of the fellowship subscribe. Generally, the group, which has adherents across Canada and around the world, takes its guidance from the last two verses of the Gospel of Mathew. In the King James version of the New Testament, those verses read:

19. Go ye therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost.

20. Teaching them to observe all things whatsoever I have commanded you; and, lo, I am with you always, even unto the end of the world.

[8] Based on this direction, they believe that they are to spread the teachings of Jesus without reward and without a formal church or other corporate structure.

[9] Members of the Christian Fellowship who have received a personal calling from God refer to themselves as “workers” and devote their lives to the teachings of Christ without any earthly reward. The workers material needs, which are modest because of their beliefs, are provided for by gifts from others in the fellowship, who either have not received a calling or who have chosen to pursue their faith while at the same time working in traditional ways. The evidence does not establish when this fellowship began, but it was at least as long ago as the 1930s. The workers often travel to less developed countries to spread the Gospel, but many travel within Canada for that purpose.

[10] The evidence reveals that the Christian Fellowship maintains a list of its membership in Canada. The list is organized by province with separate lists for members working in other countries but whose home is in Canada. The list is called the “Canadian Workers List”. It appears to be updated annually. The leaders of the group in any particular community are referred to as “elders”, and they preside over the services that the group provides for its members on Sundays and at mid-week. Those services are held either in a private home or, if the numbers warrant, in a rented community facility. Each province in Canada has an “overseer”, who is also an elder and whose responsibility it is to pair workers with one another and determine where their services can most effectively be provided. Mr. Burkenshaw is the British Columbia overseer. Workers from British Columbia are dispatched, usually in pairs, to locations either in the province or elsewhere in Canada or around the world. The overseer designates where the workers are sent and sets the term of their stay. If problems arise either as between paired workers or otherwise, it is the overseer who addresses them. Further, the overseer maintains contact with workers from his or her jurisdiction and, through that contact, is able to identify their need for material or other kinds of support. The fellowship does not pass a collection plate at their services, nor does it expect its members to tithe or make any contribution to the financial needs of the group. Rather, it relies entirely on the individual decision of its members to contribute monetarily to whatever extent they choose. Donations by members are sometimes made directly to workers, whether working in their own community or elsewhere, and sometimes to the overseer who is charged with distributing the donations according to the need as he or she perceives it. Generally, but not exclusively, members of the British Columbia fellowship support workers from their province or from elsewhere but working in their province.

[11] As noted, Mr. Burkenshaw is the overseer for British Columbia. He was given that role three years ago by his predecessor who had reached an age where he could no longer continue. Mr. Burkenshaw has been a “worker” since 1958. He, like all workers, has devoted himself to the goals of the fellowship fulltime and without pay. He initially worked for 15 years in Alberta, but since 1973 he has worked in British Columbia.

[12] Four people have provided affidavit evidence relating to Mrs. Johnston’s involvement in the Christian Fellowship. First, Mr. Burkenshaw has deposed that he knew Mrs. Johnston through their common membership in the Christian Fellowship. He knows, from that association and through his role as overseer, that she made numerous donations during her life to workers in the fellowship who either lived in British Columbia or were stationed overseas but from this province.

[13] Mrs. Wimmer first became involved in the Christian Fellowship in 1957 and has been involved ever since. She met Mrs. Johnston in 1985 and they became friends. She has deposed that they socialized together and attended fellowship meetings together. She has deposed that Mrs. Johnston was deeply involved with the group and devoted to its goals. Mr. Gordon, whom Mrs. Johnston appointed as her executor, is also a long-time member of the fellowship. He has deposed that she made gifts of money to workers in the fellowship.

[14] Mr. Winkler became involved in the fellowship in 1947. He became a worker in 1950. He worked for seven years in Saskatchewan and then spent 25 years in Korea following which he returned to British Columbia, and specifically to Penticton, where he co-ordinates the fellowship meetings in that community. He was supported while in Korea by donations from believers primarily in British Columbia, his home province. Like all workers, he does not and never has, received a salary or other remuneration for the work he does. He met Mrs. Johnston in 1983 and came to know her well. She supported him with donations while he was in Korea. She was, according to him, a very committed believer in the work of the Christian Fellowship. He has deposed that, based on his knowledge of Mrs. Johnston, he believes that it was her intention to continue to support the workers of the Christian Fellowship from British Columbia, whether they are working in British Columbia or elsewhere.

Analysis

[15] I will deal with the issues in the order they are set out above. The first three issues are related and I will deal with them together.

[16] I should point out at the outset that the Attorney General has parens patriae jurisdiction over charities and, in that role, is obliged to represent the Crown whose obligation it is to protect charities in general. The Attorney General was notified of this application, and while he does not take a position on the merits, he has, through Ms. Kay, provided a very helpful brief of law on the issues.

[17] From an analytical perspective, it is first necessary to determine whether the residuary gift is intended to create a valid charitable trust. In order to do so, it is necessary that it be for a purpose that is recognized in law as charitable. Generally, a charitable activity is one that “seeks the welfare of the public…and is not concerned with the conferment of private advantage” (see Waters’ Law of Trusts in Canada, 3rd ed., 2005, Thomson Carswell at p. 679 [Waters]). Further, there is something approaching a presumption that if an activity falls within one or more of four categories, it is considered charitable. The four categories are the relief of poverty, the advancement of education, the advancement of religious purposes, and other purposes that enure to the general benefit of the community (see Pemsel v. Special Commissioners of Income Tax, [1891] A.C. 531 (H.L.). In order for a gift to be charitable in the sense of advancing religious purposes, the gift must:

…contribute to the advancement of religion as that word is interpreted by the courts. Secondly, the gift must promote the religion instruction or education of the public. It is well settled, however,…a gift for religious purposes is prima facie charitable, the necessary element of public benefit being presumed unless and until a contrary intention is shown. (see Tudor On Charities (9th ed.), London: Sweet & Maxwell, 2003 at p. 381).

[18] When attempting to glean a testator’s intentions in the context of a possible charitable bequest, the law has taken a broad approach with a view to finding such an intention where the evidence supports it. It is not a matter of asking what a reasonable person in the place of the testator would have meant, but rather attempting to discern what the specific testator meant when he or she made the bequest. The Will itself is the primary source of that intention, but it is not the only source. Regard may be had to the surrounding circumstances, and that is so whether on its face the Will is ambiguous or not.

[19] Given the language of the Will and the other evidence, I am satisfied that Mrs. Johnston generally intended to and did create a charitable trust for the benefit of the workers of the Christian Fellowship of which she was a long time member. I would reach that conclusion without resorting to any presumption – it is clear from the evidence what she intended to do. Having reached that conclusion, the court can and should execute the trust (Waters at p. 644).

[20] The law generally requires certainty in three areas in order to give rise to a valid trust: certainty of intention, certainty of subject matter, and certainty of objects (see generally Waters at p. 132 and following). For the reasons just given, I am satisfied that the requisite degree of certainty of intention is met. No issue arises as to certainty of subject matter – the subject matter is the residue of the estate. The primary difficulty arises with respect to certainty of object, and it is to this issue that the questions posed are directed.

[21] It has been held that ‘‘[a] charitable trust never fails for uncertainty” (Brooks Estate (Re) (1969), 68 W.W.R. 132 (Sask.Q.B.) per Sirois J. at para. 17). This relaxation of the requirement for certainty is borne of the law’s desire to give effect to charitable gifts, a desire that has been extant since at least the early part of the 17th^h century. In Moggridge v. Thackwell (1803), 32 E.R.15, Lord Eldon put the matter thus:

...if the testator has manifested a general intention to give to charity, the failure of the particular mode in which the charity is to be effectuated, shall not destroy the charity; but if the substantial intention is charity, the law will substitute another mode of devoting the property to charitable purposes, though the formal intention as to the mode cannot be accomplished.

It is in this spirit that I approach the specific issues raised.

[22] Turning then to the particular questions on which direction is sought, I will deal first with whether the object of the proposed trust, to the extent it is conveyed in the phrase “the workers of the ministry” is sufficiently certain. I am satisfied that it is. On all of the evidence, it is clear that Mrs. Johnston had in mind “workers” as that word is understood by followers of the Christian Fellowship to which she belonged. I have no doubt that what she intended was to benefit those workers whom the overseer of British Columbia recognized as such. While the fellowship is more loosely organized than a church, it has an organization within which there is an identifiable group known as “workers”. While it may not be sufficiently certain if a private trust were contemplated, I am satisfied that it is sufficiently certain in the context of a charitable trust. In addition, I am well satisfied that she intended to benefit only those workers from British Columbia regardless of where they may be performing their work. That appears to have been her practice during her life and is the practice, albeit not the invariable practice, of many adherents of the fellowship. Finally, I am satisfied that she did not intend to benefit only those workers who were recognized as such at the time she made her Will or at the time of her death, but rather she intended to benefit those who may, from time to time, enjoy that status during the currency of the trust. As noted above, a list is kept of those workers. The evidence is not clear as to who actually prepares that list or how frequently it is updated.

[23] In terms of the meaning to be ascribed to the words “for medical purposes for the workers of the ministry or for any other of their needs”, I am satisfied that phrase is sufficiently certain to ground a trust. I am satisfied that what Mrs. Johnston intended was that the trust benefit those workers who are in need, provided the need is associated with their work as “workers of the ministry” and regardless of whether the need is medically based or not. During her life, those needs were typically, although not exclusively, communicated to the members of the fellowship by the overseer. I am satisfied that she intended, in part, that the trust be used to meet the needs of the workers as identified by the overseer from time to time. It also extends to the needs of workers that may be communicated directly to the trustees. That is consistent with the manner in which needs were funded by her during her life.

[24] Because of the law’s tolerance for uncertainty in charitable trusts, such trusts may be found to have been created without the detail necessary to allow the trustees to perform their obligations. That difficulty is met through the exercise of the court’s inherent jurisdiction to establish an administrative scheme by which the trust is to be administered, that is, the “machinery and details” of the trust to use the language of Waters (at p. 641). In the matter at hand, I am not concerned with the cy-pres doctrine but rather with the creation of the administrative machinery necessary to carry out the trust for the benefit of known and certain beneficiaries. Resorting to the cy-pres device is not necessary because I am satisfied that the objects of the trust are sufficiently certain and that there is no practical or other impediment to their achievement. It is to this administrative machinery which the other questions posed by the petitioner are directed.

The Administration of the Trust

[25] The petitioner has proposed that the trust have two trustees. They are Mr. Olson and Mr. Murray Wood, both of whom have consented to act in that capacity. Mr. Wood is a lawyer, having been admitted to the Bar of this province in 1974. He was a friend of the deceased and her husband for 25 years, and although not a member of the Christian Fellowship, he is familiar with it and its organization. Mr. Olson is also very familiar with the Christian Fellowship and with Mrs. Johnston’s association with it. They are both appropriate trustees and will be named as such. They are to act jointly.

[26] The trust is to be settled with the residue of Mrs. Johnston’s estate after the specific bequests have been paid and the costs of this application and the probate proceeding have been paid. The costs of this application are to be paid as special costs because this application falls within the first of the three situations outlined in Turner v. Andrews (2001), 197 D.L.R. (4th) 533, 85 B.C.L.R. (3d) 53, [2001] 3 W.W.R. 620, 38 E.T.R. (2d) 126, 2001 BCCA 76, at para. 5, in which such an award is appropriate.

[27] The trust fund is to be deposited into an interest bearing account set up in the name of the trust at a chartered bank in Canada. The trustees are to be the signatories to the account and must act together when withdrawing funds. The trustees are obliged, once the funds have been settled on the trust, to provide the estate with a release in relation to any future obligations it may otherwise have in relation to the trust. The trustees may require, as a condition of granting such a release, a copy of the estate’s final accounts, which they are to approve. If the trustees do not approve of the estate’s account, they are not to sign the release and may seek further direction from the court. The release need not be executed by Mr. Burkenshaw but rather only by the trustees.

[28] The next issue relates to whether and if so, how, the potential beneficiaries of the trust are to be notified of its existence and their possible entitlement. As noted above, workers in the fellowship typically receive funds in one of two ways: the first is through making their needs known to the overseer, who then remits funds in accordance with his assessment of the competing needs to be served; the second is by members sending donations directly to workers. Given this situation, I consider that the intention of the testatrix will be most effectually carried out if the trust fund may be accessed in either of these two ways. I am satisfied that in order to do that, it is necessary to appoint a representative of the workers, and that person should be the overseer for British Columbia. At the moment that is Mr. Burkenshaw. He, or his successor, is entitled to request payment from the trust in writing. The request is to identify the worker for whom the funds are sought, the amount sought, and the particular need for which they are sought. The trustees are to consider the request and, in doing so, may require such further information as in their discretion they consider appropriate. They may pay all, some or none of the amount requested as in their discretion they consider appropriate. In exercising their discretion, they are to have regard, among other things, to the “medical…and other needs” of the worker as identified in the request.

[29] The trustees will have the discretion to encroach on the capital of the trust to the extent they consider necessary to achieve its objects.

[30] The second way that funds from the trust may be accessed is by direct request from a worker. In order for that to happen, the workers who are beneficiaries or possible beneficiaries of the trust must know of its existence and how requests for funds may be made. As already noted, there is a list of workers in the fellowship which identifies them by name and home address. It is not clear who maintains that list or how often it is updated. The number of workers from British Columbia is now about 55. The trustees are to mail a notice to those workers identified by the Canadian Workers List as being from British Columbia, whether they are working in British Columbia or elsewhere. The notices are to be mailed to the address set out in the list. The notice is to advise of the existence of the trust, the names and addresses of the trustees, and the purposes for which the trust may be accessed. It should also include information on how workers may have a request for assistance considered by the trustees. It may be useful to prepare some form of application which could accompany the notice. The first such notice is to be sent out by the end of this year. I will deal with the frequency of future notices after hearing further from the trustees.

[31] As noted, there is a lack of evidence relating to the maintenance of the list of workers. Before the trust is executed, I am directing that the proposed trustees arrange for an affidavit from someone, likely Mr. Burkenshaw, which addresses the following matters: Who is responsible for the maintenance of the list of workers from British Columbia, and how often is it updated? Once that evidence is provided, I will deal with the frequency of the notice requirement. Mr. Burkenshaw as overseer for British Columbia, or his successor, is to provide a copy of the Canadian Workers List to the trustees forthwith and thereafter at intervals that I will set once the evidence I have just noted has been filed.

[32] I will not attempt to now further define the mechanics of the trust beyond that which I have already done. I consider that the most effective way to execute the trust is to append to the order by which it will be created a form of trust deed which sets out the terms of the trust in a manner consistent with the matters I have addressed but extending to such other matters as the parties may consider necessary. Thus, I am directing that the trustees prepare a form of trust deed and a form of release to be given to the estate which they are to file with the court by affidavit. The trustees should address the question of their remuneration in that deed. On receipt of those documents, and the affidavit material relating to the workers’ list, the parties are at liberty to set the matter back down for a further hearing following which I will set the terms of the trust in more detail. The matter can be re-set by requisition, and I will hear the parties by telephone in an effort to keep the costs to the estate down.

[33] If after reviewing these reasons there are other matters upon which the parties require direction or need clarification, they are at liberty to identify those by letter directed to my attention through the trial co-ordinator. They should copy the other interested parties with any correspondence of that nature.

Conclusion

[34] In summary, the first three questions posed for the court are answered in the affirmative. The seventh question does not arise. The workers that the testatrix intended to benefit are the workers of the Christian Fellowship working in British Columbia or elsewhere in the world but having British Columbia as their home address on the list of workers maintained by the fellowship. They include any workers who may in future, from time to time, fall within that description. Those workers are to be notified in the manner set out above. The frequency of future notices will be set once the evidentiary matters noted above have been addressed. The trustees are Mr. Wood and Mr. Olson and they are to act jointly. To the extent it is necessary, the representative of the workers is to be Mr. Burkenshaw or his successor as overseer for British Columbia.

[35] The costs of this application are to be paid by the estate as special costs and that includes the costs of counsel for the workers.

“G.M. Barrow, J.”
The Honourable Mr. Justice Barrow