By Jacqueline M. Demczur & Esther S.J. Oh

The Manitoba Court of King’s Bench in Blustein Estate (Re), confirmed that a holograph will (explained below) was valid and directed the establishment of a charitable endowment for scholarships under the terms of the said holograph will. While the Public Guardian and Trustee for Manitoba was originally named to administer the trust, the court used its inherent jurisdiction to appoint the Winnipeg Foundation as the trustee, thereby enabling implementation of the testator’s desired charitable endowment. The decision highlights the need for a testator’s intentions to be clearly expressed, as the court has the authority to modify terms of administration to ensure that charitable gifts are applied toward their intended charitable purpose.

Minnie Blustein passed away in 2017 without a will, but two handwritten notes written in 1972 and 1994 were found among Ms. Blustein’s possessions.  

Ms. Blustein had been a ward of the Public Guardian and Trustee ("PGT") for several years and remained one up to the time of her death. In this regard, the PGT became responsible for Ms. Blustein’s person and property in March 2007 after an order was issued by the Director of Psychiatric Services under s. 61 of The Mental Health Act.

Ms. Blustein’s parents pre-deceased her, she had no spouse, partner, children or siblings and the PGT was unaware of any family or friends other than a maternal cousin who lives in Ontario. There was a note dated in 1972 which stated that "everything I own should be used for (Jewish children) orphanage in Israel". The 1994 note, entitled "Blustein Family Trust", expressed a wish for her estate to be invested by the "public trustee" with 50% of the interest used for "scholarships for the needy". If these notes had not been admitted to probate, the estate would have been distributed under intestacy laws to cousins, none of whom was known to have had a close relationship with Minnie. The PGT applied to the court for direction regarding Minnie’s estate.

The court found that both the 1972 and 1994 handwritten notes were valid holograph wills, as they demonstrated a clear, fixed, and final testamentary intention, and that the later 1994 note revoked the earlier 1972 note/holograph will. The court also found no evidence to rebut the presumption of testamentary capacity at the time the two notes were written, despite Minnie’s history of mental illness.

A central issue for the charitable gift was the direction in the 1994 holograph will to use the estate for "scholarships for the needy" through the "public trustee" to invest and to use 50% of the interest. The court acknowledged that while Ms. Blustein’s intent to set up a charitable endowment was clear and the PGT can exercise the jurisdiction to administer an estate, the PGT is not authorized to act as the trustee for an ongoing endowment fund. As a result, the court found that the trust, as worded in the 1994 holograph will, could not be implemented. The court noted that where a charitable object is clear, but the implementation process is problematic, then the court could exercise its inherent administrative scheme power to give effect to the testator’s charitable intent.

The court also noted that the case did not involve a situation where it was necessary for the court to consider the application of the cy-près doctrine (i.e. application of the gift to an object "as near as possible" to the testator's intent in the situation where it is impossible or impracticable to carry out the original object). This was because Ms. Blustein’s charitable object was clear in the 1994 will. After receiving submissions on potential institutions capable of managing an endowment for needs-based scholarships, the court determined that establishing the endowment with the Winnipeg Foundation in the name of the Blustein Family would best meet Ms. Blustein’s intent.

The case reflects the court's commitment to upholding the charitable intent of bequests, even when they are contained in a holograph will. In addition, the case also confirms the court's willingness to exercise its inherent jurisdiction to make necessary modifications related to the administration of a testamentary gift in order that its charitable object is able to be achieved. 

​Read the May 2025 Charity & NFP Law Update