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Variation of charitable trusts

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.  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.

References:

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

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