Estate of Stuart

[2015] NZHC 1370

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-465 [2015] NZHC 1370

UNDER

The Charitable Trusts Act 1957

IN THE MATTER OF

a charitable trust created by the Will of
Winifred Olive Stuart

PRESBYTERIAN SUPPORT (NORTHERN)

Applicant

Hearing:	15 June 2015
Appearances:	G H J Brant for Applicant
Judgment:	17 June 2015

JUDGMENT OF KEANE J

This judgment was delivered by me on 17 June 2015 at 11.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Stace Hammond, Hamilton

Estate of Stuart [2015] NZHC 1370 [17 June 2015]

[1]      Winifred Stuart, who died on 1 September 2001, left a will, dated 7 July

1998,  in  which  she  left  half  her  residuary  estate  to  the  applicant,  Presbyterian Services (Northern), an amount which with accrued interest stood on 5 October 2012 at $526,400, subject to an express purpose.

[2]      Mrs Stuart’s purpose was to fund a chapel in the grounds of PSN’s hospital and home and village at Meadowbank, or at any property PSN obtained in its place. If there was already a chapel at the date of her death, her further expressed purpose was to fund more cottages and, if that was not possible, her wish was to establish a fund for the upkeep of the chapel.

[3]      At the date of Mrs Stuart’s death PSN had not constructed a chapel at Meadowbank and in 2003 it ceased to provide residential care for the elderly anywhere in the upper North Island and divested itself of the homes it then owned. An arm of PSN called ‘Enliven’ then began to provide care within the community for the elderly, including those with dementia, either by itself or in partnership.  In this PSN responded to an evolving understanding that care of the elderly within the community,   including   those   with   dementia,   is   much   more   beneficial   than institutional care.

[4]      In June 2003 PSN sold Meadowbank to Elrond.   In the agreement for sale and purchase it reserved to its sole discretion whether to transfer Mrs Stuart’s fund to Elrond for a chapel at the Meadowbank complex.  It wished before doing so to be satisfied as to the ‘design, location and suitability’ of any chapel Elrond proposed. Elrond itself, however, then sold to Oceania with which PSN has been unable to reach any agreement.

[5]      Consequently, PSN contends, the charitable purposes on which it holds Mrs Stuart’s fund have become ‘impossible or impracticable or inexpedient’.  It seeks an order under s 32 of the Charitable Trusts Act 1957 enabling it to apply the fund to another charitable purpose, which it contends accords as closely to Mrs Stuart’s original purpose as is now possible.

[6]      Using Mrs Stuart’s bequest, PSN wishes now to be able to fund a day care program for the elderly, especially those suffering from dementia, to be called ‘The Enliven Stuart Day Program’, to be offered at  the parish hall of the Onehunga Co-operating Parish.

[7]      PSN wishes to enhance the present program to which the parishioners and clergy are already actively committed, which  is  partly funded  by the Auckland District Health Board, in order to make it a centre of excellence.  To create a safe environment it has already met the costs of refurbishing the parish hall.  It wishes to build a ‘blokes shed’ for men with dementia.   It wishes as well to construct a

‘contemplative garden for meditation, contemplation and prayer’.

[8]      Before   applying   to   this   Court,   PSN   submitted   its   scheme   to   the Attorney-General, who in a report, dated 9 February 2015, accepted that Mrs Stuart’s original purpose had become impossible or at least impracticable or inexpedient; that the proposed scheme, like the original purpose, was charitable; and that it accorded as closely as is reasonably possible with Mrs Stuart’s original purpose.

[9]      After PSN applied to this Court in March 2015 the scheme was advertised without evoking any response, let alone any opposition.  On my own review, I agree with the conclusions expressed by the Attorney-General.  I make an order approving the scheme in the terms set out in paragraph [1] of the draft filed and an order as to

costs and disbursements in terms of paragraph [2].

P.J. Keane J