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Charitable trusts, General, Variation

Another Charitable Trust needs attention

By her will, Emma Ann O’Connor, who died in December 1937, left the residue of her estate on trust for certain specific purposes:

“(a) For the repair and painting of the Waimea Catholic Church at regular intervals as may seem necessary and expedient to my said trustees;

(b) In the upkeep and maintenance of the whole cemetery at Waimea West;

(c) In maintenance and repairs to the cottage to be occupied by my niece aforesaid;

(d) In a monthly offering of one mass per month for the deceased members of the Appleby branch of the O’Connor family;

(e) In offering a mass 3 times a year for all the deceased buried in the Waimea West cemetery.”

The trust’s main assets were a 1.8 hectare block of land on which the cottage mentioned at (c) was situated, plus cash. The value of the land was over $1 million and the annual income from leasing the land and cottage (on a lease to 2028) was over $35,000.

Since 1971 the sole trustee has been the Roman Catholic Archbishop of Wellington, presently the applicant Cardinal Dew.

In 1991 the High Court approved a variation to the purposes of the trust to add a “secondary” purpose and allow the repair and maintenance of another church in the Richmond Parish, reflecting the fact that the income from the trust assets already exceeded the annual upkeep of the first church.

In 2017 the Richmond Parish was merged with two others. A new application was made to the Court to vary the trust so that the income could be applied to church buildings and grounds of other churches within the combined parish. The upkeep of the original Waimea West church would remain the primary purpose. However, it was clear that the level of income would continue to exceed the requirements for the upkeep of the original church and grounds, including insurance, in most years.

As is being heard increasingly often when older charitable trusts are in need of amendment, the application was made on the ground that it had “become impossible or impracticable or inexpedient to carry out the existing purpose of the trust” and, moreover, the property or income of the trust was still more than was necessary for that purpose.

Peters J was satisfied that the application followed Ms O’Connor’s wishes as closely as possible.

As noted above, applications by charitable trusts for amendments because the original purposes had become “inexpedient” or simply dated and unworkable, seem to be coming to the High Court with increasing frequency. See Variation of charitable trustsVariation of Charitable Trust and The passage of time.


Re Emma Ann O’Connor Trust [2018] NZHC 624


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