Trusts can run for a long time, and charitable trusts can run indefinitely.  For this reason, it is not uncommon for charitable trusts to require variation from time to time.  Where variation is not permitted in accordance with the deed of trust, variation of charitable trusts is governed by the provisions of the Charitable Trusts Act 1957.  Where a variation of a charitable trust is sought the first step is to develop a scheme.  The second step is to seek the approval of the Attorney General in the Attorney General’s capacity as protector of charities.  The third step is to see the approval of the court, if it is so minded.

Before seeking the approval of the court, it is important to determine whether court approval is actually needed. In Fenner & Ors; Re JW Sibon Trust the trustees sought to vary the deed of a charitable trust by amending the powers of investment to reflect modern standards.  While the court granted the variation sought – it was also noted that the Trustee Act provided sufficient powers for the trustees.  That said, the court was satisfied that the trustees, who although perhaps being excessively cautious, were entitled to the variation sought to confirm the powers available to them.

Trusts Act 

Applications for variation can be made pursuant to the Charitable Trusts Act and the Trusts Act 2019 as was the case in Auckland Medical Aid Trust where Andrew J recorcded at [6] and [7] that:

[6] I am satisfied that the applicant has established a proper and sound basis for the making of the orders sought. The proposed amendments are necessary and desirable for the proper management of the trust property.

[7] I note broadly that the effect of the amendments is to:

(a) entitle the trustees of Auckland Medical Aid Trust to leave the administration and management of the centre to the directors of that company, and to make clear that the trustees of Auckland Medical Aid Trust are neither obliged nor bound to interfere in the administration or management of the centre;
(b) modify certain of the default duties contained in the Trust Act 2019 to the extent permitted by law; and
(c) introduce a power whereby the trustees of the Auckland Medical Aid Trust can amend administrative provisions of the Auckland Medical Aid Trust Deed.

References

• Re Tikipunga Protestant Children’s Home [2012] NZHC 3078
• Fenner & Ors; Re JW Sibon Trust [2014] NZHC 2564
• Auckland Medical Aid Trust [2024] NZHC 3282