Herbison
[2025] NZHC 3194
•24 October 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2025-409-434
[2025] NZHC 3194
UNDER The Charitable Trusts Act 1957 IN THE MATTER
of an application for approval of a scheme to vary a charitable trust
BETWEEN
WILLIAM EDMOND HERBISON
Applicant
Hearing: On the papers Counsel:
G Carter for Applicant
Judgment:
24 October 2025
JUDGMENT OF BOLDT J
[1] Amber Marion Gazzard died in July 2024 at the age of 82. She was an old girl of St Margaret’s College (the College) and volunteered for many years in the college archives.
[2] In her will, Mrs Gazzard made a handful of specific bequests, then left her residual estate to the College. The operative clause in her will read:
I GIVE all the rest of my estate of whatsoever kind and wheresoever situate including any general power of appointment which may be vested in me after payment thereout after all my just debts funeral and testamentary expenses to my Trustee UPON TRUST to ST MARGARET’S COLLEGE to be used by the St Margaret’s College Foundation as the governing body of gifts for the general upkeep and preservation of the school archives. I DECLARE that a receipt of the Foundation of St Margaret’s College shall be a sufficient discharge for my Trustee who shall have no further responsibility as to the application of this legacy.
RE HERBISON [2025] NZHC 3194 [24 OCTOBER 2025]
[3] Mrs Gazzard’s will established a charitable trust. Her will provided that her residual estate was to be applied for a specific purpose, and there is no doubt that maintenance of the College’s archives qualifies as a charitable purpose under the Charitable Trusts Act 1957 (the Act).1
[4] The gift from Mrs Gazzard to the College came to approximately $567,000. It is much more than the College’s archives require. Accordingly, Mr William Herbison, as trustee of the charitable trust, has applied to the Court under s 32 of the Act for approval to apply the surplus funds to another charitable purpose.
[5] Once a charitable trust is established, it is the duty of the Court to honour the wishes of the settlor. The trust cannot be varied simply because the trustees or the settlor would, on reflection, have drafted the deed differently. Nonetheless, the Act creates a power by which the Court may allow funds held by a charitable trust to be applied to another charitable purpose in certain circumstances. Section 32 relevantly provides:
32 Property may be disposed of for other charitable purposes
(1)Subject to the provisions of subsection (3), in any case where any property or income is given or held upon trust, or is to be applied, for any charitable purpose, and it is impossible or impracticable or inexpedient to carry out that purpose, or the amount available is inadequate to carry out that purpose, or that purpose has been effected already, or that purpose is illegal or useless or uncertain, then (whether or not there is any general charitable intention) the property and income or any part or residue thereof or the proceeds of sale thereof shall be disposed of for some other charitable purpose, or a combination of such purposes, in the manner and subject to the provisions hereafter contained in this Part.
(2)Subject to the provisions of subsection (3), in any case where any property or income is given or held upon trust, or is to be applied, for any charitable purpose, and the property or the income which has accrued or will accrue is more than is necessary for the purpose, then (whether or not there is any general charitable intention) any excess property or income or proceeds of sale may be disposed of for some other charitable purpose, or a combination of such purposes, in the manner and subject to the provisions hereafter contained in this Part.
1 Charitable Trusts Act 1957, s 38.
[6] Where a variation is sought, s 34 provides that the trustees may prepare a “scheme” for the disposition of the property, and s 35 provides that the scheme must be submitted to the Attorney-General, in her role as protector of charities, for comment.
[7] Section 36 of the Act provides that the proposed scheme must be advertised. The advertisements must give particulars of the scheme, set out the date and time at which the Court is likely to hear the application for approval, and indicate that anyone who wishes to oppose the application should give written notice of their intention to do so.2
[8] The manager of the St Margaret’s College Foundation (the Foundation) has attested that a comprehensive upgrade of the College’s archives, including new shelving, display cabinets, lighting, painting and technology, will account for just over
$90,000 of Mrs Gazzard’s bequest. It proposes an alternative charitable purpose for the rest. The alternative purpose constitutes a “scheme” for the purposes of s 34.
[9]The Foundation defines the proposed scheme as follows:
The surplus funds will be allocated to the Endowment Fund, which is a fund dedicated towards [the Foundation’s] commitment to ensuring long term financial sustainability of St Margaret’s College and creating a legacy for the future.
[10] In other words, while Mrs Gazzard sought to have her gift applied specifically to the archives, the Foundation proposes that a substantial majority of the funds Mrs Gazzard left should be applied to general purposes associated with the College.
[11] The proposed scheme was submitted to the Attorney-General, and her delegate prepared a report which supports the proposed variation.
[12] The Attorney-General’s report discussed the ongoing application of the common law doctrine of cy-pres. Cy-pres provided that variation of a charitable trust was permitted only if the proposed new purpose for the trust property was as close as possible to the purpose specified by the donor. The Attorney-General noted that s 32
2 Notice must be given to the Registrar of the Court, the trustees and the Attorney-General.
supersedes the cy-pres doctrine, though the need to apply the funds to a purpose closely related to the one specified by the settlor remains an important guiding principle. As Tompkins J observed in Re Whatman:3
It seems to me that in deciding whether to approve a scheme under s 32 the court, having found that it is impossible or impracticable or inexpedient to carry out the terms of the trust as directed by the settlor or that one of the other grounds set out in s 32 are established, owes a duty to the settlor of the trust property to dispose of it as nearly as possible in accordance with the intentions of the settlor in establishing the trust. It owes a duty also to those proposed to be benefited by the trust and to the public generally to dispose of the fund or property as nearly as possible in accordance with the charitable purposes of the trust and in such a way as will best serve the interests of those intended to be benefited. It is not, however, bound by the cy-pres doctrine as a guiding principle and may, if the original charitable purpose cannot be carried out, approve a scheme without regard to its relevance to the old purpose.
[13]Similarly, in Re Twigger, Tipping J observed:4
Part III does not make a cy-pres approach mandatory. However, this Court has held in the series of decisions, which I have traversed, that those promoting a scheme under Part III should seek to substitute beneficiaries or purposes resembling as closely as possible in the changed circumstances those which originally commended themselves to the person who established the trust. That is simply another way of saying, as did Holland J in Erskine's case, that the wishes of the testator must be followed as far as possible by the scheme.
To achieve that objective it is obviously necessary as a first step to identify those wishes as exemplified by the original trust which ex hypothesi has failed or become inexpedient or impracticable.
Trusts of a charitable nature will be expressed or established with differing degrees of detail or specificity. In seeking to derive the settlor's intention, one should in my view endeavour to establish what one might call the essential elements of the original trust.
Discussion
[14] I agree the proposed variation is appropriate. Mrs Gazzard’s gift far exceeds the most ambitious requirements of the College’s archives. The Foundation’s proposal that the surplus, which exceeds $470,000, should be applied to the wider needs of the College is pragmatic and appropriately analogous. While Mrs Gazzard had a
3 Re Whatman (1965) 1 NZTR 0-004 (SC) at 11.
4 Re Twigger [1989] 3 NZLR 329 (HC) at 28. See also Re Tennant [1996] 2 NZLR 633 (HC) at 637.
particular affinity for the College’s archives, the evidence shows she was also devoted to the College as a whole.
[15] I agree with the Attorney-General that while the doctrine of cy-pres no longer applies, it is always desirable for proposed variations to accord as closely as reasonably possibly to the terms of the original trust. Mrs Gazzard’s wishes have been honoured in full by the extensive upgrade of the archives her gift will permit. The proposal to use the reminder for the wider betterment of the College ensures the funds will be applied in a manner which benefit students and old girls more broadly.
[16] It may have been possible to construct a purpose which is more closely analogous to the one Mrs Gazzard specified in her will, but I am satisfied that insisting upon a more tightly-focused alternative would unfairly and arbitrarily restrict the Foundation in the use it may wish to make of the funds. The fact the scheme, like the original gift, will benefit the wider College community means it will meet Mrs Gazzard’s overarching objective. It is notable, and not surprising, that there has been no opposition to the proposed variation.
[17] I am satisfied the proposed scheme is appropriate and make an order pursuant to s 53(c) of the Act approving the scheme without modification.
Boldt J
Solicitors:
Chapman Tripp, Christchurch
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