Estate of Burke
[2025] NZHC 2553
•4 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-550
[2025] NZHC 2553
UNDER Section 133 of the Trusts Act 2019 IN THE MATTER
of an application by GERARD MICHAEL MOLLOY, solicitor of Auckland as executor of the Estate of HUBERT BURKE
BETWEEN
GERARD MICHAEL MOLLOY
ApplicantAND
MARILYN PATRICIA HANDLEY
Interested Party
JUDE BURKE-LOILANTING
Interested Party
Hearing: 25 June 2025 Appearances:
A L McMillan for the Applicant
No appearance for the Interested Parties
Judgment:
4 September 2025
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 4 September 2025 at 10:00 am pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Molloy Hucker Lawyers, Auckland Glaister Keegan, Auckland Thomson Wilson, Whangārei
ESTATE OF HUBERT BURKE [2025] NZHC 2553 [4 September 2025]
[1]On about 2 November 2023 Hubert Burke died with advanced dementia, aged
90. Fourteen years earlier he had executed a will dated 7 August 2009 (2009 Will). On 9 February 2024, pursuant to the 2009 Will, the applicant, Gerard Michael Molloy, was appointed executor of Mr Burke’s estate by grant of Probate in Common Form (Probate).
[2]Two matters have subsequently come to light:
(a)On 30 October 2024 Mr Burke’s former solicitors provided Mr Molloy with various documents, including their letter to Mr Burke dated 20 June 2022, recording his instructions to revoke the 2009 Will. In their letter the solicitors asked Mr Burke to confirm his revocation instructions by signing and returning an attached copy of it, which he did on 6 July 2022 (revocation letter).
(b)During the course of administering Mr Burke’s estate, the applicant has come into possession of a diary, or journal, belonging to Mr Burke. It contains handwritten statements of what appear to be Mr Burke’s testamentary intentions, as at 2 June 2023, in favour of Marilyn Patricia Handley.
[3] Mr Molloy has since obtained and reviewed Mr Burke’s medical notes; consulted Mr Burke’s solicitors; and obtained a specialist report from a psychiatrist and psychogeriatrician, Dr Jane Casey. Having done so, Mr Molloy seeks the Court’s directions under s 133 of the Trusts Act 2019 that:
(a)his appointment as executor of Mr Burke’s estate pursuant to the grant of Probate was and remains valid;
(b)the 2009 Will is the last and valid will of Mr Burke; and
(c)Mr Burke did not, at the time of his purported revocation of the 2009 Will or subsequently, have testamentary capacity.
[4] In accordance with the Court’s earlier directions the application has been served on various parties including Ms Handley. The application is unopposed. Ms Handley abides.
Background
[5]Mr Burke was not married when he died. He has two adult children.
[6] Mr Molloy’s evidence is that Mr Burke was befriended by Ms Handley during the later years of his life. Mr Molloy says that when Mr Burke died he had advanced dementia and Ms Handley was acting as his caregiver. Medical evidence of Mr Burke’s dementia is set out further below.
[7] Ms Handley says she has been in a de facto relationship with Mr Burke since 2009. She makes no claim on his estate. Instead, on 1 March 2024 she gave Mr Molloy notice of her election under s 61 of the Property (Relationships) Act 1976 (PRA) to apply for an equal division of relationship property. Mr Molloy has instructed counsel in relation to Ms Handley’s claim under the PRA.
Revocation letter
[8] In order to respond to Ms Handley’s claim, Mr Molloy wrote to Mr Burke’s former solicitors requesting their files from 2009. It was in the course of preparing this material that the solicitors located the revocation letter.
[9] On 7 July 2022, the day after Mr Burke signed the revocation letter, he had an initial meeting with Leon Penney, a solicitor in Kaikohe. Mr Burke had provided Mr Penney with a copy of his 2009 Will and the revocation letter.
[10] Mr Penney has affirmed an affidavit in support of Mr Molloy’s application. The affidavit attaches a copy of his file note of his meeting with Mr Burke and Ms Handley.
[11] Mr Penney says he found it difficult to obtain Mr Burke’s instructions on estate planning because of Mr Burke’s “scattered thought processes”. At the end of their
meeting Mr Penney raised concerns with Mr Burke about his ability to provide instructions. Mr Penney asked Mr Burke to obtain a doctor’s certificate confirming his capacity to give instructions, and then to get in touch with him again. Mr Penney recalls Mr Burke being concerned at Mr Penney’s request, but that they departed on good terms.
[12] On 12 July 2022 Mr Burke telephoned Mr Penney’s staff instructing that there was nothing further for them to do.
[13] On 12 August 2022 Mr Penney sent Mr Burke a letter summarising their meeting, and his concerns about Mr Burke’s ability to give instructions and his request for a capacity certificate. Mr Penney says he thought it appropriate to send this letter considering Mr Burke’s state of mind, and so that he could refer to it as necessary. The letter records as follows:
[…] In fact, I found it difficult to keep you on track with regards to any instructions at all. Accordingly, I ask that you make an appointment with your doctor and take this letter to her or him and seek a certificate as to your capacity to understand my instructions around your will and associated documentation.
Once you have this, please contact our office to make an appointment to meet with me.
[14] On 1 February 2023, Mr Penney’s firm received a telephone call from Mr Burke wanting to make an appointment about his will. However, on 3 February 2023 Mr Penney received a letter from Mr Burke’s doctor confirming he did not have capacity. That letter provides as follows:
To whom it may concern
I have been asked to assess Hubert in regards to his clinical mental capacity who I understand was seeing a lawyer in regards to his Will.
I saw Hubert and examined him on 02/02/2023 and it is of my professional medical opinion that he does not have capacity to make full competent decisions for himself.
Nga mihi
[15] Mr Penney met with Mr Burke and Ms Handley again on 20 February 2023. He says that at that meeting he attempted to explain the effect of the doctor’s certificate
“but this was met with a similar response to our earlier meeting on 7 July 2022”. He provided Ms Handley with brochures and information concerning the regime under the Protection of Personal and Property Rights Act 1998 (PPPRA).
Handwritten wills
[16] Mr Molloy has also collected Mr Burke’s papers and effects, which included a diary. It contains various entries, all dated 2 June 2023, including what appears to be a series of handwritten wills. Each of these entries appears to be written by Ms Handley, signed by Mr Burke, and witnessed by a person named Ned Peita.
[17]The first of the handwritten statements is as follows:
I Hubert Burke, authorize [sic] Poppy-Marilyn Patricia Handley to handwrite my testimony of what I want and wish to happen on my death. She has been my confidant, caregiver, house keeper, driver and my good friend for 14 years my everything.
[18]Separately, but on the same date:
I Hubert Burke give/leave my home/property and all my chattels to Poppy- Marilyn Patricia Handley on my death.
Lock stock and barrel.
[19]Also:
I Hubert Burke leave my property/my retirement home as I call it, and all my chattel on my property are to be left/given To Poppy Marilynn Patricia Handley. She has been my confidant, driver, house keeper and my good friend. She has helped me with everything I have needed to do, and has followed my instructions to the T.
[20]And:
I Hubert Burke have two Motto’s that is to Look after the woman and children. And to respect the Maori. If you don’t, get out of this country. The country I love and respect.
[21]Another entry records:
I just want to get all my affairs in order before I snuff it. (I believe)
I Hubert Burke do not appreciate being told that I am not capable of make [sic] decision for myself in regards to my very own property, Home, or my hard earned money over my life of 75 years.
There are other entries to similar effect.
Legal principles
Validity of wills and revocations:
[23] The Wills Act 2007 (Act) governs the law of wills in New Zealand. Section 11 of the Act requires that a will must be in writing; and it must be signed and witnessed by at least two people.1
[24] A valid will, or part of a valid will, may be revoked, but only by one of the various means listed in s 16, including:
(a)the will-maker makes a later valid will; or
(b)the will-maker writes a document that —
(i)makes clear his or her intention to revoke the will or the part; and
complies with section 11.
Testamentary capacity principles
[25] The principles relating to the assessment of testamentary capacity to make or revoke a will are well established:2
1 Wills Act 2007, s 11. The requirements for signing and witnessing for the two witnesses are detailed at s 11(4).
2 As from Loosely v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19], citing Woodward v Smith
[209] NZCA 215 and Banks v Goodfellow (1870) LR 5 QB 549. These principles apply when a testator revokes a will as well as when executing a will: James Anson-Holland and others Wills and Succession (NZ) (online looseleaf ed, LexisNexis NZ Ltd) at 5.2.4.
(a)Because it involves moral responsibility, the possession of the intellectual and moral faculties common to our nature is essential to the validity of a will.
(b)It is essential to the exercise of such a power that a testator:
(i)understands the nature of the act and its effects; and also the extent of the property of which he is disposing;
(ii)is able to comprehend and appreciate the claims to which he ought to give effect;
(iii)be free of any disorder of the mind which would poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
(c)In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. The latter may be in a state of extreme weakness, feebleness or debility and yet he may have enough understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.
(d)A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
(e)Testamentary capacity does not require a sound and disposing mind and memory in the highest degree; otherwise, very few could make testaments at all.
(f)Nor must the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament.
(g)But if that standard is not met, he will lack capacity.
[26] It is important to treat these well established criteria as guiding principles rather than as a formula.
Medical evidence
[27] As noted, Mr Molloy obtained Mr Burke’s medical notes and records. While administering the estate Mr Molloy also became aware that “just prior” to Mr Burke’s death an application had been made to the Family Court seeking to appoint a welfare guardian under the PPPRA. The supporting affidavit included a report from a medical practitioner confirming that Mr Burke was assessed on 10 November 2023 to be suffering from advanced dementia, and lacked the competence to manage his own affairs.
[28]The medical evidence clearly demonstrates Mr Burke’s cognitive decline.
[29] On 21 January 2014 a consultant geriatrician with the Auckland District Health Board (ADHB) reported that Mr Burke had cognitive impairment/dementia. Mr Burke had scored 14/30 on a Montreal Cognitive Assessment (MoCA), as compared to having scored 26/30 approximately a year prior.
[30] Dr Jane Casey, a consultant psychiatrist and psychogeriatrician, explains that the MoCA is a screening tool to detect mild cognitive impairment. Dr Casey concluded, on the basis of Mr Burke’s score, that at the time of testing Mr Burke had dementia, likely to a mild degree.
[31] On 10 May 2014 the consultant geriatrician from the ADHB reported to Mr Burke’s GP that he “…actually has quite an advanced dementia”.
[32] On or around 4 January 2018, Mr Burke’s medical notes record that discussions would be had with Mr Burke about an Alzheimer’s society referral.
[33] By 9 March 2021 medical notes record that Mr Burke’s memory loss was “significant”.
[34] On 6 September 2022 the medical notes record “phone request for fortisip, end stage dementia, but I note he has been on this for a long time”. I note this was just two months after Mr Burke signed the revocation letter and arranged his meeting with Mr Penney.
[35]On 2 February 2023 Mr Burke’s GP wrote:
Here with Carer Poppy. Wanting to see Lawyer – Lyon Penney Kaikohe to do his will but lawyer wants assessment/capacity?
Last MoCA that was done in Greenlane was 14/30 so cognitive impairment.
Needs a MoCA done but not enough time today although a last MoCA was 14/30.
Hubert is preoccupied with other things ie talking about NZ wars and didn’t want to do the MoCA.
…
Not orientated to time, place, day, year or time of day. Orientated to person (Poppy) (myself) his DoB/full name and age. Talking to Hubert I don’t think he has capacity to understand when I am asking him questions. His korero is all over the place and in previous consults this is the same as well.
I had a talk to Dr Graeme Fenton about Hubert and he agrees given not orientated and his last MoCA was 14/30 likely doesn’t have capacity.
[36]On 3 February 2023 Mr Burke’s doctor concluded that he lacked capacity.
[37]Mr Burke died from advanced dementia on 2 November 2023.
[38] Based on this medical history Dr Casey’s opinion is that as at July 2022 Mr Burke had an established dementia, likely of a moderately severe degree, and would not have been able to understand the nature of revoking the 2009 Will.
Decision
[39] From the evidence discussed above I am satisfied, on the balance of probabilities, that, as at 6 July 2022, Mr Burke lacked testamentary capacity when he purported to revoke the 2009 Will. Dr Casey’s opinion, having reviewed the deceased’s medical records, the Family Court proceedings under the PPPRA, and other relevant documents, is that at that time Mr Burke would not have been able to understand the nature of the revocation of the 2009 Will.
[40] Dr Casey’s medical evidence is entirely consistent with the evidence of Mr Penney, an experienced community solicitor, whose dealings with Mr Burke at that time left him sufficiently concerned about Mr Burke’s cognitive capacity to require Mr Burke to obtain a doctor’s competency certificate before proceeding any further. When Mr Burke took steps to obtain that certificate in February 2023, the doctor advised that Mr Burke lacked capacity.
[41] It follows for the same reasons that I am also satisfied Mr Burke lacked capacity when he signed the handwritten wills in June 2023. Dr Casey’s evidence is that by then Mr Burke had an established dementia of a moderately severe degree. Mr Burke’s medical records from October 2023 record him then to have advanced dementia and a lack of capacity and insight.
[42] I also note that, in any event, the handwritten wills were invalid in that they were not signed in the presence of at least two witnesses.3
Result
[43]I make the orders sought that:
3 Wills Act, s 11(4).
(a)at the time of the purported revocation of the 2009 Will, the deceased did not have testamentary capacity;
(b)the 2009 Will is the last valid will of the deceased; and
(c)the applicant’s appointment as executor of Mr Burke’s estate was and remains valid.
Robinson J
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