The High Court found that Hubert Burke was in no fit state to make decisions about his will, after his caregiver appeared to have tried to get him to change it. Photo / 123RF
The caregiver of an elderly man with dementia tried to get him to change his will with handwritten notes she had penned, and he then signed, instructing him to leave everything to her when he died.
“I just want to get all my affairs in order before I snuff it. (I believe),” one of the notes, signed by Hubert Burke, said.
It was later revealed that a letter had been sent to a lawyer in 2022, confirming Burke’s instructions to revoke the will he had created in 2009.
Burke was 90 when he died with advanced dementia in November 2023. Two years earlier, medical notes recorded that his memory loss was “significant”.
The court-ordered appointment of Gerard Molloy as executor of Burke’s estate in February last year brought to light the handwritten notes in a diary Molloy had obtained in a stack of papers.
The discovery was a result of inquiries he made after the caregiver said she intended to apply for an equal division of Burke’s relationship property.
In a High Court 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.
They were signed by just one witness.
One of the notes said she had been Burke’s confidant, caregiver, housekeeper, driver and “good friend for 14 years - my everything”.
Another diary entry said, “I, Hubert Burke, give/leave my home/property and all my chattels” to the named caregiver upon his death, “lock, stock and barrel”.
Justice Robinson found that, based on Burke’s established medical history, he would not have been able to understand the nature of revoking the 2009 will.
He ruled that the 2009 will was Burke’s last valid will.
Northland 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.
“It’s definitely more common than it was 20 years ago,” he told NZME.
Burke was unmarried when he died, leaving two adult children.
The caregiver claimed to have been in a de facto relationship with him since 2009.
A memorial notice in the Herald in November 2024 featured a single message only, from the caregiver.
“Our memories are ours to keep. Love always ... xxx”
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.
Molloy then wrote to Burke’s former solicitors to request their files from 2009.
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.
Around the same time, Burke met Leon Penney in Kaikohe. Penney was given a copy of the 2009 will and the revocation letter.
Justice Robinson said Penney found it difficult to get clear instructions because of Burke’s obvious confusion.
Penney had asked Burke to get a doctor’s certificate confirming his capacity to give instructions.
Burke then phoned the law office a few days later to inform staff that nothing further needed to be done.
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.
Penney then met Burke and the caregiver and tried to explain the effect of the doctor’s certificate. He was “met with a similar response” to the earlier meeting in July the year before.
Justice Robinson said Penney gave the caregiver brochures and information concerning laws around the protection of property rights.
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.
He said it was not a skill in which lawyers were trained, and they therefore relied on doctors to provide certificates of a person’s capacity to make decisions.
“That’s not an exact science either, but I’d urge young lawyers in particular to err on the side of caution on such matters.”
The diary containing the handwritten “wills” was among Burke’s papers and effects collected later by Molloy.
After finding them, he obtained Burke’s medical notes, talked with solicitors who had acted for him in the past and obtained a specialist report from a psychiatrist and psychogeriatrician.
He then applied to the High Court for directions on the validity of Burke’s last will in 2009 and whether, at the time he was purported to have revoked it, he was of sound mind.
Molloy’s evidence was that Burke was befriended by the caregiver during the later years of his life.
He also became aware that, just before Burke died, an application had been made to the Family Court seeking to appoint a welfare guardian.
The supporting affidavit included a report from a doctor confirming that Burke was suffering from advanced dementia, and lacked the competence to manage his own affairs.
Justice Robinson said the medical evidence was “entirely consistent” with the evidence from Penney, whose dealings with Burke at that time left him sufficiently concerned.
In any event, the handwritten wills were invalid because they were not signed in the presence of at least two witnesses, he said.
NZME has approached Burke’s family for comment.
Efforts have also been made to contact the caregiver.
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.