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This book is only available in PDF format

Authors: Kimberly Lawrence, Kevin Lenahan
Published: 6 August 2025
Pages: 29

Introduction

Since the Trusts Act 2019 came into force in January 2021, numerous charities are reviewing their trust deeds and in many cases seeking to update them.

Commonly charities will look at updating investment provisions, to reflect the new Act, and ensure that impact investment is permitted. They will often look at streamlining trustee appointment and retirement processes and ensuring that conflict-of-interest provisions are fit for purpose. Frequently, they will update liability exclusion and indemnity clauses to echo the new legislation and ensure there are express powers to obtain and act on legal opinions, and to obtain trustee insurance. It is commonplace to modernise a schedule of powers and consider whether there are any powers which should contain safeguards or restrictions. Trustee remuneration clauses will also need to be addressed in some cases.

Where charitable trust deeds contain a variation power, many of these variations can be made without any difficulty. However, where charitable trust deeds do not contain a variation power, there are now two principal options for carrying out variations.

The first option is the traditional route of preparing a scheme under Part 3 of the Charitable Trusts Act 1957 and applying to the High Court. A scheme can relate to the purposes of a charitable trust in some circumstances, or it can address administrative matters (which most updates to modernise trust deeds will be limited to). However, there are down sides to this process, including advertising costs, which can be significant for charitable trusts, and the legislatively prescribed process of liaising with Crown Law to obtain a report from the Attorney-General in respect of the scheme of variation can take many months. This process can be prolonged even further when there is negotiation required as to the content of any proposed scheme. (Continued...)

Content outline

  • Relying on a variation power
  • Preparing a deed of variation
  • Applying to the High Court
  • Section 32 of the Charitable Trusts Act 1957
  • Section 33 of the Charitable Trusts Act 1957
  • Procedure under the Charitable Trusts Act 1957
  • What is a scheme?
  • Section 130 of the Trusts Act 2019
  • The two alternative paths for administration variations
View contents page
LAWRENCE Kimberly-263 LENAHAN Kevin-299  
Kimberly Lawrence
Greg Kelly Trust Law
Auckland		 Kevin Lenahan
Greg Kelly Trust Law
Auckland		  

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