The executors named in a will, who are different than the directors of a corporation of which the testator was the shareholder, are directed in the will to make a gift to a registered charity equal to $100,000 minus all sums given to the charity by the corporation following the death of the testator. In response to a submission that such a gift by the executors would qualify under s. 118.1(5) given that the directors are different from the executors (unlike the facts in 2012-0453131C6 F), CRA stated (TaxInterpretations translation):
[T]he testamentary clause which you submitted leaves a certain discretion to the executor, which would prevent the gift from qualifying as a gift by will. Furthermore, this type of bequest is not a gift of a specific property, of a precise amount, nor a precise percentage of the residue of an estate. In this regard, a gift of a specific property is the gift of property in kind rather than of money.