RABBITT V RABBITT HC WN CIV-2012-485-002126

RABBITT V RABBITT HC WN CIV-2012-485-002126

Where a testator shows a general charitable intention directed to a specific charitable cause but refers to an organisation that is not the appropriate contemporary vehicle, the Court may, having ensured statutory advertising and an Attorney-General report, vary the will under ss32-33 to substitute a suitable charity (here Hutt Hospital Foundation) to carry out the charitable purpose (education and training of community/district nurses). The statutory prerequisites were satisfied and variation was appropriate.

Citation
openlaw-52bfce44_432a_424f_bdbe_51cae3ee0052.pdf
Parties
Applicant: John William Rabbitt; First Respondent: Dorothy Rabbitt; Second Respondent: Attorney-General
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 March 2013
Procedural Posture
Charitable Trusts Variation and Correction of Will / Originating Application Under High Court Rules R19.5 and S32/s33 Charitable Trusts Act; Hearing and Decision
Outcome
Application granted. Variation of the will approved and correction permitted; costs awarded as specified.
Legal Topics
Variation of Charitable Trusts, Cy Près, Correction of Will, Public Benefit, Charitable Purpose Validation
Charity Law Trusts Wills Civil Procedure Variation of Charitable Trusts Cy Près Correction of Will Public Benefit +1 more

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Parties

John William Rabbitt

Applicant

Dorothy Rabbitt

First Respondent

Attorney-General

Second Respondent

Procedural Posture

Charitable Trusts Variation and Correction of Will / Originating Application Under High Court Rules R19.5 and S32/s33 Charitable Trusts Act; Hearing and Decision

Legal Issues

  1. 1 Whether the gift for community/district nurses is charitable
  2. 2 Whether the court can vary the will to substitute the named beneficiary organisation
  3. 3 Whether the testator manifested a general charitable intention permitting cy-près relief

Ratio Decidendi

Where a testator shows a general charitable intention directed to a specific charitable cause but refers to an organisation that is not the appropriate contemporary vehicle, the Court may, having ensured statutory advertising and an Attorney-General report, vary the will under ss32-33 to substitute a suitable charity (here Hutt Hospital Foundation) to carry out the charitable purpose (education and training of community/district nurses). The statutory prerequisites were satisfied and variation was appropriate.

Court Disposition

Application granted. Variation of the will approved and correction permitted; costs awarded as specified.

Orders

  • Vary the trusts created by the last will of Harry Sibun Kent dated 21 November 1995 by removing the words "Hutt District Nursing Trust" from clause 4 and inserting "The Hutt Hospital Foundation (to be held in a separate account for the specific purpose of education, training and professional development of community...
  • Approve payment from the estate of the applicant's costs, the costs of the Crown Law Office on behalf of the Attorney-General, and costs of $3,845.60 to Mrs Lorraine Scoullar