The High Court said each diary entry appeared to have been written by the caregiver, and signed by Hubert Burke as his explicit wishes in favour of the caregiver. Photo \/ 123RF<\/p>\n
The court-ordered appointment of Gerard Molloy as executor of Burke\u2019s estate in February last year brought to light the handwritten notes in a diary Molloy had obtained in a stack of papers.<\/p>\n
The discovery was a result of inquiries he made after the caregiver said she intended to apply for an equal division of Burke\u2019s relationship property.<\/p>\n
In a High Court<\/a> decision this month, Justice Michael Robinson said each diary entry appeared to have been written by the caregiver, who cannot be named, and signed by Burke as his explicit wishes in favour of the caregiver, as of June 2023.<\/p>\n They were signed by just one witness.<\/p>\n One of the notes said she had been Burke\u2019s confidant, caregiver, housekeeper, driver and \u201cgood friend for 14 years – my everything\u201d. <\/p>\n Another diary entry said, \u201cI, Hubert Burke, give\/leave my home\/property and all my chattels\u201d to the named caregiver upon his death, \u201clock, stock and barrel\u201d.<\/p>\n Justice Robinson found that, based on Burke\u2019s established medical history, he would not have been able to understand the nature of revoking the 2009 will.<\/p>\n He ruled that the 2009 will was Burke\u2019s last valid will. <\/p>\n Northland<\/a> lawyer Leon Penney, who had brief earlier dealings with Burke, warned that the potential for abuse was a growing problem linked to an ageing population, and one for which lawyers needed to be on their guard.<\/p>\n \u201cIt\u2019s definitely more common than it was 20 years ago,\u201d he told NZME.<\/p>\n Burke was unmarried when he died, leaving two adult children.<\/p>\n The caregiver claimed to have been in a de facto relationship with him since 2009.<\/p>\n A memorial notice in the Herald in November 2024 featured a single message only, from the caregiver.<\/p>\n \u201cOur memories are ours to keep. Love always … xxx\u201d<\/p>\n She made no claim on his estate but, in March 2024, she gave Molloy notice that she intended to apply for an equal division of relationship property.<\/p>\n Molloy then wrote to Burke\u2019s former solicitors to request their files from 2009.<\/p>\n Included among them was their letter to Burke in June 2022, asking him to confirm instructions to revoke his will, which he did with a signed letter in July 2022.<\/p>\n Around the same time, Burke met Leon Penney in Kaikohe<\/a>. Penney was given a copy of the 2009 will and the revocation letter. <\/p>\n Justice Robinson said Penney found it difficult to get clear instructions because of Burke\u2019s obvious confusion. <\/p>\n Penney had asked Burke to get a doctor\u2019s certificate confirming his capacity to give instructions.<\/p>\n Burke then phoned the law office a few days later to inform staff that nothing further needed to be done.<\/p>\n Months later, after Penney was contacted by Burke wanting to make another appointment about his will, a doctor wrote confirming that Burke did not have the capacity to make full, competent decisions for himself.<\/p>\n Penney then met Burke and the caregiver and tried to explain the effect of the doctor\u2019s certificate. He was \u201cmet with a similar response\u201d to the earlier meeting in July the year before. <\/p>\n Justice Robinson said Penney gave the caregiver brochures and information concerning laws around the protection of property rights.<\/p>\n Penney told NZME he was unable to comment on the specific case, but said it was incumbent on all lawyers to be cautious about ensuring their clients had the capacity to make the right decisions.<\/p>\n He said it was not a skill in which lawyers were trained, and they therefore relied on doctors to provide certificates of a person\u2019s capacity to make decisions.<\/p>\n \u201cThat\u2019s not an exact science either, but I\u2019d urge young lawyers in particular to err on the side of caution on such matters.\u201d<\/p>\n The diary containing the handwritten \u201cwills\u201d was among Burke\u2019s papers and effects collected later by Molloy.<\/p>\n After finding them, he obtained Burke\u2019s medical notes, talked with solicitors who had acted for him in the past and obtained a specialist report from a psychiatrist and psychogeriatrician<\/a>.<\/p>\n He then applied to the High Court for directions on the validity of Burke\u2019s last will in 2009 and whether, at the time he was purported to have revoked it, he was of sound mind.<\/p>\n Molloy\u2019s evidence was that Burke was befriended by the caregiver during the later years of his life.<\/p>\nNorthland lawyer Leon Penney said it was upon all lawyers to be cautious around ensuring their clients had capacity to make the right decisions about wills.<\/p>\n