Otherwise, the assets would go to a woman named Bridie Meagher for her lifetime if she wished.
Decades down the track, Burke’s wishes have finally been honoured, although not as first intended.
Justice David Gendall said the original wording of the charitable gift remained especially vague. Photo / Martin Hunter
The house and furniture were sold soon after his death, with the proceeds placed in a law firm trust account.
It was not clear from a recent High Court decision why the property was sold, or by whom.
Justice David Gendall said in his judgment of October 1 that Burke’s will was the subject of an earlier application to the High Court for directions because of difficulties around it.
He said annual interest from the estate since Burke’s death appeared to have been distributed to Burke’s sister, Sister Leo, until she died in 2006, and then to Meagher until her death at age 94 in 2022.
Now, 40 years after Burke wrote his will, its provisions have been varied by the court through the rewriting of a few lines, allowing the proceeds of his remaining estate, amounting to $65,000, to go to the Sisters of St Joseph of the Sacred Heart (NZ) Trust Board.
Retired lawyer Richard Sprott, who had administered Burke’s estate since 1987, sought to vary the wording of the charitable gift so that final distributions could be made and the estate wound up.
In 1994, Justice Paul Neazor held that Burke’s intention his house and furniture be used by nuns constituted a valid charitable gift, for either the advancement of religion or to aid the relief of poverty and distress.
The present application was brought by Sprott because it had proved “impossible and impracticable” to carry out the charitable purpose as intended, and as originally worded by Burke.
This was because, as Justice Neazor said in his decision, the house and furniture were sold after Burke’s death and only the proceeds from the sale remained.
Justice Neazor also said the phrasing “to be used as a relax to religious nuns” created an element of impracticality for the purpose of distributing the proceeds held in the law firm’s trust account.
In the recent decision, Justice Gendall said the funds in the residual estate were available to be distributed as a charitable gift.
“In terms of the will, I am satisfied the wording of the charitable gift remained especially vague and clearly it required clarification to enable it to be given proper effect,” he said.
“The current application, in my view, achieves this with the appropriate suggested variation to the wording of the gift itself.”
He was also satisfied disposal of the property in the way outlined would best serve the interests of those intended to be beneficiaries.
A sworn affidavit by Sister Moya Campbell in support of the application set out the charitable purposes for which the order would use the funds if gifted, the judgment said.
With orders for the changed wording, Justice Gendall directed the law firm to pay out the proceeds to the Sisters of St Joseph of the Sacred Heart (NZ) Trust Board, a registered charitable trust.
Costs of $9560 and $3000 in disbursements were to be paid out of Burke’s estate.
The trust would decide which charities will receive assistance from the fund.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.