Rules about mental capacity when making a will apply also to revocation, with the High Court ruling Northland resident Hubert Burke’s 2009 will remained valid despite his signature on a later letter supposedly revoking this will, replaced by handwritten notes giving all his assets to caregiver Poppy-Marilyn Handley. Mr Burke died in 2023 aged ninety, with advanced dementia.
The High Court was told that a solicitor acting as executor under Mr Burke’s 2009 will was surprised to find amongst Mr Burke’s belongings notes dated two months before his death in which Mr Burke stated on death all he owned went to Poppy-Marilyn Patricia Handley ‘lock stock and barrel.’
Evidence was that these notes appeared to be in Ms Handley’s handwriting, signed by Mr Burke, stating Mr Burke was expressing gratitude for the fourteen years support she had provided as ‘confidant, caregiver, housekeeper, driver and good friend.’
The executor also later found Mr Burke’s former solicitor held a recent letter prepared and signed by Mr Handley revoking his 2009 will.
This lawyer refused to prepare a new will until Mr Burke first got a medical certificate certifying his mental competence. Mr Burke did not do so.
The High Court ruled this supposed revocation was ineffective; Mr Burke lacked sufficient mental capacity at the time to understand what he was doing.
Medical evidence established that Mr Burke had suffered cognitive decline for at least the previous eight years.
Justice Robinson ruled the 2009 will remained valid, confirming the executor’s appointment as valid.
The court judgment did not disclose who are named beneficiaries under this 2009 will.
He is survived by two adult children.
Ms Handley claims she has been in a de facto relationship with Mr Burke since 2009.
Abandoning any attempt to have the handwritten notes validated under the Wills Act as Mr Burke’s final will, she has set in train Property (Relationships) Act procedures to claim a share of his assets.
re Estate of Hubert Burke – High Court (4.09.25)
25.196