RE DEW [2018] NZHC 624

RE DEW [2018] NZHC 624

The court found it was inexpedient to carry out the existing charitable purpose because the trust's income materially exceeded the needs of the Waimea West Church and parish boundaries changed after parish amalgamation; the proposed variation closely followed the settlor's wishes to apply surplus funds for Catholic church upkeep; Attorney‑General consent and procedural requirements were satisfied; the application therefore met s32(1) and s56(1) criteria and the scheme was approved; the court refused to delete the cottage maintenance provision because the testator intended perpetual maintenance of the cottage as identified by reference to the niece.

Citation
[2018] NZHC 624
Parties
Applicant/trustee: John Atcherley Cardinal Dew; Deceased/settlor: Emma Ann O'Connor; Objector: Theresa Mary Berry; Interested Party: M E O'Connor; Interested Party: P J Noble
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 April 2018
Procedural Posture
Charitable Trust Variation Under Charitable Trusts Act 1957 / Application for Approval of Scheme; Hearing and Judgment
Outcome
Application granted; scheme approved with draft order to be amended to correct preamble; deletion of clause 1.1.3 refused; judgment re‑delivered and order confirmed after consideration of supplementary affidavit and Attorney‑General report
Legal Topics
Scheme Under Charitable Trusts Act, Variation of Charitable Trust Purposes, Inexpediency / Cy Près, Interpretation of Testamentary Intention
Charity Law Trusts Law Property Law Scheme Under Charitable Trusts Act Variation of Charitable Trust Purposes Inexpediency / Cy Près Interpretation of Testamentary Intention

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Parties

John Atcherley Cardinal Dew

Applicant/trustee

Emma Ann O'Connor

Deceased/settlor

Theresa Mary Berry

Objector

M E O'Connor

Interested Party

P J Noble

Interested Party

Procedural Posture

Charitable Trust Variation Under Charitable Trusts Act 1957 / Application for Approval of Scheme; Hearing and Judgment

Legal Issues

  1. 1 Whether it is impossible, impracticable or inexpedient to carry out the original charitable purpose
  2. 2 Whether surplus income/funds may be applied to a wider parish consistent with the settlor's intent
  3. 3 Whether clause maintaining the cottage should be deleted given death of the life‑tenant

Ratio Decidendi

The court found it was inexpedient to carry out the existing charitable purpose because the trust's income materially exceeded the needs of the Waimea West Church and parish boundaries changed after parish amalgamation; the proposed variation closely followed the settlor's wishes to apply surplus funds for Catholic church upkeep; Attorney‑General consent and procedural requirements were satisfied; the application therefore met s32(1) and s56(1) criteria and the scheme was approved; the court refused to delete the cottage maintenance provision because the testator intended perpetual maintenance of the cottage as identified by reference to the niece.

Court Disposition

Application granted; scheme approved with draft order to be amended to correct preamble; deletion of clause 1.1.3 refused; judgment re‑delivered and order confirmed after consideration of supplementary affidavit and Attorney‑General report

Orders

  • Application for approval of scheme granted and scheme approved as set out in draft order filed 21 February 2018 subject to corrected preamble
  • Refusal to delete clause 1.1.3 of the scheme (maintenance and repairs to the cottage)