Rabbitt v Rabbitt

[2013] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-002126 [2013] NZHC 420

UNDER  Section 32 of the Charitable Trusts Act

1957

Section 66 of the Trustee Act 1956
Section 31 of the Wills Act 2007

BETWEEN  JOHN WILLIAM RABBITT Applicant

ANDDOROTHY RABBITT First Respondent

ANDATTORNEY-GENERAL Second Respondent

Hearing:         6 March 2013

Counsel:         G F Kelly for the Applicant

Judgment:      6 March 2013

ORAL JUDGMENT OF GODDARD J

Solicitors:      Greg Kelly Law Ltd, PO Box 25243, Wellington 6146

Gault Mitchell Law, PO Box 645, Wellington 6140

RABBITT V RABBITT HC WN CIV-2012-485-002126 [6 March 2013]

[1]      Before the Court is an originating application under r 19.5 of the High Court Rules and under ss 32 and 33 of the Charitable Trusts Act 1957, to vary the trusts created by the last will of Harry Sibun Kent (the will) dated 21 November, 1995 by removing the words “Hutt District Nursing Trust” from clause 4 of the will and inserting in their place the words “the Hutt Hospital Foundation”.  It is proposed the trusts be held in a separate account for the specific purpose of education, training and professional development of community nurses in the Hutt District Health Board area. The community nurses are also known as district nurses.

[2]      On 29 October 2012 orders were made under r 19.5 of the High Court Rules permitting the applicant to commence by way of originating application, giving directions as to service and providing proof that the requirements as to advertising, set out in s 36 of the Charitable Trusts Act 1957, had been met.

[3]      The application seeks the following:

(a)A variation under Part 3 of the Charitable Trusts Act 1957 of the terms of the will so that the funds may be held by the Hutt Hospital Foundation on trust for the education, training and professional development of Community Nurses, also known as District Nurses;

(b)A correction of the will under s 31 of the Wills Act 2007 to replace the reference to the “Hutt District Nursing Trust” with a reference to the Foundation (for purposes as above);

Background to the application

[4]      This has been carefully traversed in a memorandum of counsel and outline of submissions on behalf of the applicant submitted for the hearing today.   In this memorandum Mr Kelly, counsel for the applicant, has advised the Court that the draft application under Part 3 was put before the Crown Law Office (on behalf of the Attorney-General) and the proposed scheme has received a favourable report from the Attorney-General.

[5]      The proposal has been advertised both in the Dominion Post newspaper (on three consecutive Fridays) and in the New Zealand Gazette.   All of the persons directed to be served have acknowledged receipt of the documents.  A nephew of Mr Harry Kent (Mr Alan Kent) was at the time at sea and could not be served in person.  He has acknowledged receipt of the documents by email.

[6]      A notice  of  an  intention  to  appear  was  filed on  behalf  of  Mrs  Lorraine Scoullar, one of the nieces of the deceased.  Counsel discussed her concerns with her lawyer and these were then passed on to the trustees of the Hutt Hospital Foundation.

[7]      The trustees have signed an undertaking providing Mrs Scoullar with an assurance that the trustees intend to give her an annual report on the use of the funds from the estate of Harry Kent, not just a report on the activities of the trust generally.

[8]      Yesterday,  in  accordance  with  a  request  by  Mr  Matsis  on  behalf  of Mrs Scoullar,  I  excused  Mr  Matsis’  attendance  in  Court  today.    Mrs  Scoullar consents to an order being made in accordance with paragraph 1.5 of the originating application.  I note that the estate does not seeks costs against Mrs Scoullar and the estate consents to the costs incurred by her in relation to this application being paid by the estate.

The purpose of the gift is charitable

[9]      In a memorandum dated 3 October 2012 counsel for the applicant set out in detail the relevant authorities establishing that a gift to promote the work of district nurses or community services is charitable.[1]

[1] Clarke v Taylor (1853) 1 Drew 642; Re Satterthwaites’s Will Trusts [1966] 1 All ER 919;

Re Jenkins’s Will Trusts [1966] 1 All ER 926.

[10]     Community nursing provides a public benefit which can benefit a substantial community and the work of the community nurses in the Hutt Valley is of benefit to the general population there. The population is in excess of 130,000.

[11]     The  affidavit  evidence  before  the  court  indicates  the  funds  will  be  used primarily for the training and education of community nurses.  This is an educational activity and clearly charitable.

[12]     It is accepted that Mr Kent’s will discloses a general charitable intention.  He had made specific provision by way of individual legacies to his nephews.  Having provided for those of his relatives whom he evidently believed he should provide for, it was open to him to apply the balance of his estate for charitable purposes.

[13]     It is also accepted that Mr Kent believed there was a separate charitable organisation known as the Hutt District Nursing Trust and that it was the charitable purposes of that trust which he wished to support.  Thus, on the evidence, Mr Kent had a general charitable intention with a designated charitable cause in mind and the Court is able to approve the variation sought under the Act as appropriate and legally

sound.[2]

Conclusion

[2] Re Petitt [1998] 2 NZLR 513; re Scott HC Ak CIV-2006-4004-005110, 8 February 2011.

[14]     The  Court  being  satisfied  that  the  application  is  in  order  and  that  all advertising has been properly undertaken and in light of the favourable report on behalf of the Attorney-General, the Court directs as follows:

(a)That an order be made in accordance with para 1.5 of the originating application, under ss 32 and 33 of the Charitable Trusts Act 1957, varying the trusts created by the last will of Harry Sibun Kent dated

21 November 1995, by removing the words “Hutt District Nursing Trust” from clause 4 of that Will and inserting in their place the words “The Hutt Hospital Foundation (to be held in a separate account for the specific purpose of education, training and professional development of community nurses in the Hutt District Health Board

area)”; and

(b)      Approving payment from the estate of the applicant’s costs, the costs

of the Crown Law Office on behalf of the Attorney-General and costs of $3,845.60 for Mrs Lorraine Scoullar.

Goddard J