Estate of Burke
[2025] NZHC 2870
•1 October 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2025-409-309
[2025] NZHC 2870
UNDER the Charitable Trusts Act 1957 IN THE MATTER OF
an application to approve a scheme under s 35(2) of the Charitable Trusts Act 1957
BETWEEN
RICHARD MICHAEL SPROTT as solicitor for the estate of the late THOMAS CYRIL BURKE, of Christchurch
Applicant
Hearing: 30 September 2025 Counsel:
M S Crooymans for Applicant
Judgment:
1 October 2025
JUDGMENT OF GENDALL J
[1] This is an application for approval of a charitable scheme pursuant to s 35(2) of the Charitable Trusts Act 1957 (the Act) varying the provisions of an earlier will of the deceased dated 19 March 1985 (the will).
[2] Thomas Cyril Burke (the deceased) died in 1987 without children and having never married. He left the will which in part he wrote himself. Relevantly this will provided:
My house at 58 Mt Pleasant Road and furniture I bequeath to my wife if married to any children I may be blessed with.
Otherwise if single to Sister Leo for use to relax religious as nuns etc. for her lifetime.
Otherwise to Bridie Meagher for her lifetime if she wishes,
ESTATE OF THOMAS CYRIL BURKE [2025] NZHC 2870 [1 October 2025]
Otherwise it to be used as relax for religious as nuns, that they may experience some of the peace and serenity I have enjoyed.
[3] The applicant, Mr Sprott, who has administered the estate of the deceased since 1987, seeks to vary wording of a charitable gift made in the deceased’s will so that final distributions may be made, and the estate wound up. That application is brought in reliance on s 32 of the Act.
[4] In his application under Part 3 of the Act, Mr Sprott seeks orders from this Court:
(a)Approving a charitable scheme pursuant to s 35(2)…varying the provisions of the will of the deceased…granted probate on 28 June 1990 as follows:
(i)Deleting the words
… Otherwise it to be used as relax for religious as nuns, that they may experience some of the peace and serenity I have enjoyed.
(ii)And inserting the words
… Upon the death of Bridie Meagher, Saunders and Co Solicitors shall pay and distribute the proceeds of my house and furniture (and any interest) to the Sisters of St Joseph of the Sacred Heart (NZ) Trust Board (Charitable services registration number CC22358).
For the purposes of the above paragraph, “proceeds” are defined as the sum of $65,008.31, plus any interest, less any costs or disbursements awarded.
[5]Before the Court, in addition to the application are:
(a)Two affidavits in support of the proposed scheme, one from Mr Sprott and one from Moya Patricia Campbell, a nun who is a Sister and Regional Leader for the Order of the Sisters of St Joseph of the Sacred Heart in New Zealand.
(b)A report of the Attorney-General dated 29 January 2025 pursuant to ss 35 and 36 of the Act which effectively endorses the scheme in its current format.
I have now had an opportunity to consider all this material.
[6] The deceased’s will was the subject of an application to this Court for directions on 7 July 1983 relating to earlier difficulties concerning the will. This was the subject of a judgment of Neazor J dated 16 March 1994.1
[7] In the March 1994 judgment of Neazor J, this Court held that the deceased’s disposition in his will providing that his house and furniture would be used:2
…as relax for religious as nuns that they may experience some of the peace and serenity I have enjoyed.
constituted a valid charitable gift as either one for the advancement of religion or to aid the relief of poverty and distress.
[8] The present application is brought by Mr Sprott on the basis that pursuant to s 32(1) of the Act, it has proved to be impossible and impracticable to carry out the charitable purpose noted above, and as originally worded by the deceased.
[9] Mr Sprott advises that the scheme which has been prepared also provides for an order directing Saunders and Co, Solicitors, Christchurch (in whose trust account lie the sale proceeds of the deceased’s house and furniture which were sold some time ago) to pay and distribute those proceeds to the Sisters of St Joseph of the Sacred Heart as a registered charity.
[10] In the report of the Attorney-General on this application dated 29 January 2025, the application and draft scheme have been considered by Crown Law on behalf of the Attorney-General pursuant to s 35 of the Act. In particular, from this report, a number of affirmative conclusions are reached.
(a)At [4], the report concludes on behalf of the Attorney-General that:
I am satisfied that the scheme is a proper one and should carry out the desired purpose or proposal, and is not contrary to law or public policy or good morals; that the scheme can be approved by this Court under Part 3 of the Act; that every proposed purchase is
1 Re Thomas Cyril Burke, High Court Christchurch 92/93, 16 March 1994 (Judgment of Neazor J).
2 At 19 and 20.
charitable within the meaning of pt 3 and can be carried out; and that the requirements of Part 3 have been complied with in respect of the scheme up to the giving of this report.
(b)At [19], there is no issue as to whether the charitable gift has lapsed, notwithstanding reported difficulties with giving effect to the deceased’s charitable intention.
(c)At [25], the original terms of the charitable gift are impossible to carry out. The deceased’s original testamentary intentions were that the house and furniture would be left to provide relaxation for nuns. However, these were sold following the deceased’s death and so only sale proceeds remain.
(d)At [26], the phrasing “to be used as relax to religious as nuns” creates an element of impracticality for the purpose of distributing the proceeds held in the Saunders and Co trust account.
(e)At [27], the proposed scheme renders the original disposition practicable and gives effect to the deceased’s intentions as closely as possible in all of the circumstances.
[11] The application has also now been advertised in accordance with the requirements of s 36 of the Act. A statement of advertising dated 24 September 2025 is before the Court. The proceedings were advertised in the Christchurch Press on Thursday 31 July 2025, Thursday 14 August 2025, and Thursday 28 August 2025, and in the New Zealand Gazette on Friday 25 July 2025. Copies of the advertisements are attached to the statement of advertising.
[12] No notices of opposition to the application itself have been received by or filed with the Court. Nor has counsel for the applicant, Mr Sprott, received any such opposition.
[13] I note also that Mr Burke’s nominated executors in his will have died and that Mr Sprott has been involved in the administration of the estate since 1987. No other person who might serve as an executor of the deceased’s estate appears to be known
and, it is clear too that the proceeds of sale of the house and furniture are currently in the trust account of Saunders and Co where Mr Sprott was a consultant until his recent retirement. The annual interest from the estate, it appears, has been distributed by Saunders and Co to Sister Leo in terms of the provision in the deceased’s will until her death in 2006 and then to Ms Meagher until her death in 2022.
[14] As I understand it, there remains a little over $65,000 in the residual estate as house and furniture sale proceeds which is available to be distributed as the charitable gift. In terms of the will, I am satisfied the wording of the charitable gift remains especially vague and clearly it requires clarification to enable it to be given proper effect. The current application, in my view, achieves this with the appropriate suggested variation to the wording of the gift itself.
[15] The Order of the Sisters of St Joseph of the Sacred Heart (in which Sister Leo, Mr Burke’s sister—his first residuary beneficiary—was a nun) is a registered charitable trust. Sister Moya Campbell’s sworn affidavit filed in this Court in support of the application sets out the order’s structure, funding and operation, as well as the charitable purposes for which the order would use the funds if gifted.
[16] As I have noted above, Neazor J in his earlier decision found that the gift in issue here did express a valid charitable intention despite his suggestion that there may be some future issues with practically effecting this gift due to its vague wording. No questions of lapse of the gift arise here however. And, in terms of s 32 of the Act, I am satisfied that a variation of the charitable purpose is justified in this case, especially as this is a situation where the trust’s original purpose has clearly proved to be “impossible or impracticable or inexpedient” to carry out.
[17] In my view, the substituted arrangements proposed here are charitable as that term is understood. In addition, the new scheme does accord as closely as is reasonably possible in the changed circumstances to the terms of the deceased’s original trust. I am satisfied too that disposable of the property in the way outlined in the present application will best serve the interests of those intended to be beneficiaries here and the public.
[18] Given my conclusion as I note above that the charitable purposes outlined in the deceased’s will are inexpedient, impossible or impracticable to carry out, the variation proposed in the current scheme is suitable and a proper one for the Court to approve, appropriate orders will follow.
Result
[19] Accordingly, Mr Sprott’s 27 May 2025 application succeeds. Orders are now made:
(a)Approving the charitable scheme pursuant to s 35(2) of the Act varying the provisions of the will of the deceased dated 19 March 1985 and granted probate on 28 June 1990 as follows:
(i)Deleting the words “… Otherwise it to be used as relax for religious as nuns that they may experience some of the peace and serenity I have enjoyed”.
(ii)And inserting the words “… Upon the death of Bridie Meagher, Saunders and Co Solicitors shall pay and distribute the proceeds of my house and furniture (and any interest) to the Sisters of St Joseph of the Sacred Heart (NZ) Trust Board (Charitable services registration number CC22358).
For the purposes of the above paragraph, “proceeds” are defined as the sum of $65,008.31, plus any interest, less any costs or disbursements awarded.
(b)Authorising costs and disbursements (including the sum of $750 being the cost of the Attorney-General’s report on this scheme) of this application (calculated as I note below at [21]) are to be paid out of the deceased’s estate.
(c)Directing Saunders and Co, Solicitors, Christchurch as the party with whom the proceeds are vested, to pay out the proceeds to the Sisters of
St Joseph of the Sacred Heart (NZ) Trust Board (Charitable services registration number CC22358) in accordance with the proposed scheme.
(d)Declaring that the payment of the proceeds will be a full and sufficient discharge for Mr Sprott and Saunders and Co Solicitors.
Costs
[20] An appropriate memorandum on costs from counsel for Mr Sprott has been provided.
[21] Costs on a category 2B scale basis totalling $9,560 together with disbursements totally $3,026.66 (including the Attorney-General’s fee of $750 for preparing his report) are awarded to the applicant, Mr Sprott, to be paid out of the deceased’s estate as noted above.
Gendall J
Solicitors:
Saunders & Co, Solicitors, Christchurch for Applicant
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