John Duncan Mcgruer Estate Act 1945

John Duncan Mcgruer Estate Act 1945

Private Act1945 No 4
Date of assent7 December 1945

An Act to enable the High Court of New Zealand to vary the Trusts created by the Will of the late John Duncan McGruer, late of Christchurch, Importer, by making Provision for his Son, Eoin Harvey McGruer.

  • The words “High Court” were substituted, as from 1 April 1980, for the words the “Supreme Court” pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

  • Preamble

    WHEREAS John Duncan McGruer, late of Christchurch, importer, died on the twelfth day of April, nineteen hundred and twenty-three, having made his last will and testament dated the twenty-ninth day of March, nineteen hundred and twenty-three, which said will was duly proved in the High Court of New Zealand at Christchurch on the twenty-seventh day of April, nineteen hundred and twenty-three: And whereas the said John Duncan McGruer left him surviving his son Eoin Harvey McGruer, but it appears that there are good grounds for believing that he failed to make adequate provision for the proper maintenance and support of his said son: And whereas the said Eoin Harvey McGruer has made no application under the Family Protection Act 1908, for such provision: And whereas the time for his making such an application has expired, and cannot be extended by the High Court of New Zealand under the proviso to subsection nine of section thirty-three of that Act by reason of the fact that the estate of the said John Duncan McGruer is now held by his executors as trustees for the beneficiaries under the said will, and is accordingly deemed under the law applicable to that estate to have been finally distributed within the meaning of that proviso: And whereas the said Eoin Harvey McGruer is in need of such provision, and it is desirable that the High Court of New Zealand should be authorized to inquire into the provision which should be made and to vary the trusts of the said will accordingly: And whereas the objects of this Act cannot be attained otherwise than by legislation:

    The Preamble was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the word “High” for the word “Supreme” in each place it occurs. See sections 50 to 55 of that Act for the transitional and savings provisions.

BE IT THEREFORE ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:—

1 Short Title

  • This Act may be cited as the John Duncan McGruer Estate Act 1945.

2 Interpretation

  • In this Act, if not inconsistent with the context,—

    Estate means the balance of the estate of the said John Duncan McGruer still in the hands or under the control of the trustees

    Testator means the said John Duncan McGruer

    Trustees means Leonard Alfred Bone, of Hawera, draper, and James Barnett, of Wellington, secretary, and the trustee or trustees for the time being acting in lieu of or in addition to the said Leonard Alfred Bone and James Barnett, or either of them

    Will means the will of the said John Duncan McGruer.

3 Authorizing application to High Court to vary trusts of will

  • (1) An application to the High Court for an order under section thirty-three of the Family Protection Act 1908, making such provision for the said Eoin Harvey McGruer out of the estate as the Court thinks fit may be made at any time within twelve months after the passing of this Act.

    (2) Subject to the provisions of this Act, an application made under this Act shall be heard and determined by the High Court as if it had been made within the time limited in that behalf by subsection nine of the said section thirty-three, and the provisions of Part 2 of the Family Protection Act 1908, so far as they are applicable, shall apply accordingly.

    (3) In considering any application under the provisions of this Act the High Court shall not be bound by the strict rules of evidence, but may receive such evidence and draw such conclusions therefrom as it thinks fit, and may have regard to circumstances arising subsequently to as well as those existing at the death of the testator.

    (4) Notwithstanding any appropriation made by the trustees, any provision made by the High Court on an application under this Act shall rank in priority to the bequest of the surplus income of the estate at the discretion of the trustees to or for the benefit of the Salvation Army and other charitable institutions in New Zealand not specifically named, and to the gift of the residuary real and personal estate as made and provided by the will to or for the benefit of the Commissioner for New Zealand of the Salvation Army and the Moderator of the Presbyterian Church of New Zealand, but shall rank after all other bequests and dispositions bequeathed and provided for by and in the will.

    (5) The costs as between solicitor and client of all parties of and incidental to the promotion of this Act and of any application to the High Court under this Act shall be taxed by the Registrar of the High Court at Wellington and paid out of the estate.

    Section 3 was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by substituting the word “High” for the word “Supreme” wherever it occurs. See sections 50 to 55 of that Act for the transitional and savings provisions.

4 Private Act

  • This Act is hereby declared to be a private Act.