The trustees of the subject estate are directed by the will to make gifts to specified charities in specified amounts. The will gives the trustees a choice as to how the gifts may be completed. One of the permitted methods for satisfying the bequests involves steps that may negate the transfers being viewed as gifts at law. The trustees ask whether the gifts would be viewed as gifts by will within the meaning of subsection 118.1(5) and 118.1(15) if that method is not used.
Position: The gifts are gifts by will within the meaning of subsection 118.1(5).
The terms of the will clearly specify the following: the identity of the recipients, the quantum of the gifts, that the trustees are required to make the gifts, that the recipients of the gifts are qualified donees, and that the estate will be able to complete the gifts after payment of its debts.