The recent English case of Langley v Qin¹ concerned a socially isolated, extremely elderly bridegroom, undue influence on him by his new bride and the impact of the English intestacy and marriage rules. The unfortunate outcome of the case was much - discussed in the UK earlier this year. The result could also happen in New Zealand, as New Zealand law is similar to UK law in several key respects. 

This alert reviews the decision and considers the hypothetical outcomes if this fact pattern were to arise in New Zealand.

The case highlights how capacity and marriage laws can interact with wealth planning in unexpected ways and the value of having a good relationship with a capable legal adviser.

The background and the decision of the English Court

Mr Harrington and his first wife lived in England. They had a single daughter, Mrs Langley (née Harrington), who was the claimant in this case.

Mrs Langley cared for her mother, who was suffering from dementia, for several years until 2015. Subsequently, Mr Harrington employed professional carers to care for Mrs Harrington.

In 2017, when he was in his 90s, Mr Harrington was identified by a regional ambulance service as being at risk of financial and material abuse by an unidentified professional carer. By the time of his wife’s death in January 2018, Mr Harrington was socially-isolated and delusional. He incorrectly believed that he had been estranged from his daughter for 30 years, his daughter had stolen his horses and he had been a major in the army for 12 years.

Mr Harrington met Ms Qin, in early 2019, probably in her capacity as his paid carer. From early 2019 until after Mr Harrington’s death, sums totalling over GBP 230,000 were progressively withdrawn from Mr Harrington’s bank account for Ms Qin’s benefit. These included sums withdrawn from cash machines when Mr Harrington was not physically present.

From March 2019, Mr Harrington approached a number of law firms and ‘will shops’ with a view to making a new will, but never progressed past the initial interview. He likely failed their initial will-making capacity screening.

Mr Harrington and Ms Qin married on 25 June 2019 when Mr Harrington was 93 and Ms Qin was 54. The wedding was small and neither Mr Harrington’s family nor Ms Qin’s son attended. Although Mr Harrington had a will dated May 2012 (‘2012 Will’), leaving his entire estate to his daughter Mrs Langley, the 2012 Will was automatically revoked by his marriage to Ms Qin.

Following the marriage, increasingly large sums were transferred to Ms Qin. Once online banking was set up for Mr Harrington in late 2019, the cash withdrawals increased further still.

On 28 February 2020, there was a failed attempt to transfer half of Mr Harrington’s house to Ms Qin and it was inferred that the conveyancing solicitors had refused to act.

Finally, Mr Harrington found a law firm which was willing to take his will instructions. Ms Qin and an anonymous ‘friend’ accompanied him to the initial interview. They stayed in the room with Mr Harrington throughout the interview. There was no evidence that Mr Harrington read the letter sent subsequently by the law firm or the enclosed draft will. The law firm did not require a will-making capacity assessment.

Mr Harrington had a second meeting at the law firm on 24 March 2020 and signed the will (‘2020 Will’). Ms Qin was immediately outside the room throughout the second meeting. The 2020 Will left his entire estate to Ms Qin, with a gift over, should she predecease him, to Ms Qin’s son from her previous marriage. There was no provision in the 2020 Will for Mr Harrington’s daughter, Mrs Langley.

Mr Harrington died on 26 May 2020. Ms Qin arranged a simple funeral and grave. Mr Harrington’s family was not invited.

Ms Qin made a false financial declaration to HMRC when applying for probate of the 2020 Will. She did not declare the multiple transfers of funds to her during Mr Harrington’s lifetime and she under-declared Mr Harrington’s bank balance and, possibly, the value of his house at his death.

The late Mr Harrington’s daughter, Mrs Langley, commenced proceedings challenging the 2020 Will. The Court found that Mr Harrington had lacked capacity to make a valid will in 2020, did not know and approve of the contents of the 2020 Will, and was subject to undue influence by Ms Qin when entering into the 2020 Will.

Under English law, Ms Qin’s marriage to Mr Harrington had automatically revoked the 2012 Will. As Mr Harrington had died, the Court no longer had the power under English law to annul the marriage to Ms Qin. Having found that the 2020 Will was invalid and the 2012 Will had been revoked, Mr Harrington died intestate.

Under the English intestacy laws, Ms Qin as his widow inherited GBP 270,000 plus half of the remaining estate.

This outcome prompted much media commentary in the UK. A similar outcome could also occur in New Zealand if the facts were to arise here, given that the relevant laws are similar to the English equivalents.

A New Zealand court would likely find a lack of will-making capacity on similar facts

Would Mr Harrington have had sufficient will-making capacity in 2020 under New Zealand law?

In New Zealand, in general, the will-maker must:

• have the capacity to understand the following matters:
  • that he or she is making a will and its effects;
  • the nature and extent of the property that is in his or her estate; and
  • the moral claims to which he or she ought to give effect when making a testamentary disposition; and

• be free of:
  • any mental disorder which would poison the will-maker’s affections, pervert the will-maker’s sense of right or prevent the exercise of the will-maker’s natural faculties; and
  • any insane delusion which would influence the will-maker’s will and bring about a disposal that the will-maker would not have made if the mind had been sound.²

In Langley v Qin, Mrs Langley was able to raise a real doubt about her father’s testamentary capacity in relation to the 2020 Will. The Court found that Mr Harrington lacked the ability to understand the moral claims to which he ought to give effect (such as his moral duty to his daughter, Mrs Langley) and was not free of mental disorders or delusions, including about his career and his family history.

It is likely that a New Zealand court would also hold that Mr Harrington lacked will-making capacity, for the same reasons.

A New Zealand court would likely find undue influence on similar facts

The general principles for determining undue influence in New Zealand

• the initial burden of proof lies with the challenger;
• the challenger must show that the undue influence led to the making of the will and that the will was not the result of the free exercise of an independent will. For example, harassing or threatening the will-maker, or asserting to such an extent that the will-maker yields for the sake of peace and quiet or to escape from the stress or social discomfort, so as to overbear the will-maker’s judgement, discretion or wishes, is not legitimate influence;
• whether the transaction (in this case making the will) was brought about by undue influence is a question of fact, which can be established by showing:
  • ‘actual undue influence’; or
  • that the purported will-maker placed trust and confidence in the other person (either factually or by reason of a special relationship e.g. lawyer/client; parent/child) and the transaction calls for an explanation, in light of the circumstances of the case;
• once established, the burden shifts to the person seeking to uphold the transaction (in this case, the will); and
• allegations of undue influence may succeed in relation to the exercise of powers, and not just the transfer of property, such as by a will.³

It is likely that undue influence would also be found under New Zealand law in Mr Harrington’s situation, given Mr Harrington’s extreme age and vulnerability, his dependence on Ms Qin, his delusional state, the unusual terms of the 2020 Will (leaving the residue to Ms Qin’s son if she did not survive Mr Harrington) and Ms Qin’s physical proximity during the first interview with the solicitor and while the will was signed.

In Langley v Qin, Mr Harrington’s 2020 Will was held to be invalid due to Mr Harrington’s lack of will-making capacity or undue influence or both. The same result would likely have also occurred in New Zealand.

Typically, a New Zealand court would then seek to grant probate of the last valid will, if any.

An existing will is revoked by marriage, except in certain circumstances

In Langley v Qin, the last valid will was the 2012 Will. It was revoked, under English law, by the marriage of Mr Harrington and Ms Qin, with the result that Mr Harrington died without a valid will.

Under New Zealand law, by section 18 of the Wills Act 2007 a will is revoked if the will-maker marries or enters into a civil union, unless the will is made in contemplation of a marriage or civil union (which was not the case here).⁴

If New Zealand law were to apply, the 2019 marriage of Mr Harrington and Ms Qin would have revoked the 2012 Will. Accordingly, Mr Harrington would also have died intestate under New Zealand law.

On an intestacy, the widow, widower, civil union partner or de facto partner has statutory entitlements

Under the English intestacy laws, Ms Qin was entitled to GBP 270,000 plus half of Mr Harrington’s remaining estate.

If Mr Harrington hypothetically died intestate in New Zealand, under our statutory intestacy laws Ms Qin as his widow would receive his personal chattels, NZD 155,000 plus interest on that sum from the date of death, and one-third of any balance of the estate.⁵

Mrs Langley as his sole child would receive two-thirds of the net balance of the estate. Under New Zealand law, Mrs Langley as Mr Harrington’s sole child would have been left in a slightly better financial position than under English law.

Could New Zealand marriage laws have saved the 2012 Will?

The Court in Langley v Qin was asked to consider whether the marriage of Mr Harrington and Ms Qin was invalid, so as to prevent the 2012 Will from being revoked.

The author understands that in England, lack of mental capacity is not a ground for a marriage to be void from the outset. The marriage of Mr Harrington and Ms Qin was merely voidable and could be annulled at the Court’s order, but only with effect from the date of the order i.e. not retrospectively to the date of the marriage. Therefore, the English Court could never have ‘saved’ the 2012 Will from being revoked.

Under New Zealand law, the Family Court could determine that Mr Harrington’s marriage was void from the outset, if it found that Mr Harrington did not consent to marry due to duress, mistake, insanity or for any other reason.⁶

In that case, Mr Harrington would be treated as never having married under New Zealand law and the 2012 Will would be his last valid will. The entire estate would pass to Mrs Langley under the terms of the 2012 Will.

There was no evidence of absence of consent to marry due to duress or mistake but it is possible that Mr Harrington did not consent to marriage due to ‘insanity’ or for any other reason.

‘Insanity’ is not statutorily defined in this context. However, the Family Court has held that the test for ‘insanity’ is whether the person was capable of understanding the nature of the contract into which he or she was entering or, conversely, the person’s mental condition was such that he or she was incapable of understanding the contract.⁷

To understand the nature of the contract of marriage, the contracting party must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. The responsibilities normally attaching to marriage, as described by the courts, include living together and loving each other to the exclusion of others, financial support, sexual relations, child-rearing and housekeeping. The test is applied at the time of the marriage and it is not relevant that a party fails to meet such responsibilities after the marriage takes place.

In general, merely understanding the words of the marriage ceremony is not sufficient to establish capacity, but the party’s understanding of the contract of marriage does not need to be more than a ‘simple and unsophisticated’ understanding.

Nothing suggests that Mr Harrington lacked a reasonable awareness of the duties and responsibilities of the marriage contract into which he was entering. As such, it is likely that a New Zealand court would not find Mr Harrington incapable of marrying by reason of insanity.

The New Zealand courts have been reluctant to declare a marriage void for lack of consent by applying the fourth limb i.e. ‘for any other reason’. In a case where the applicant suffered from schizophrenia, the Court held that a party’s general state of mind and the pressure from the other party’s family to get married, were not sufficient to find lack of consent under the fourth limb, unless the person was suffering from delusions or hallucinations at the time of the marriage.⁸

Although Mr Harrington was found to be suffering from delusions regarding his relations with his daughter and his career from January 2018 i.e. before the marriage to Ms Qin, the evidence provided would likely not be sufficient to support a claim of lack of consent to marry under the fourth limb, under New Zealand law.

Accordingly, the marriage would likely stand, the 2012 Will would be revoked, and Ms Qin would be entitled to a share of Mr Harrington’s estate under New Zealand’s intestacy laws.

It seems ironic that New Zealand’s capacity laws, which are intended to protect a person and their estate, would fail to protect Mr Harrington’s interests in this hypothetical situation and, apparently, would enable a person to take financial advantage of his vulnerability.

This case highlights the importance for clients of building a regular relationship with a capable legal adviser. If Mr Harrington had consulted with a capable legal adviser before making any major life changes, his interests could have been protected, and much stress and cost to his descendants prevented. 

This alert was written by Suzanne Smith, an associate in our Private Wealth team.

1. Langley v Qin (Central London County Court, 12 April 2024)

2. Loosely v Powell [2018] NZCA 3.

3. Gorringe v Pointon [2023] NZCA 42.

4. Wills Act 2007 section 18.

5. Administration Act 1969 section 77.

6. Family Proceedings Act 1980 section 31(1)(a)(ii).

7. J v J [1974] 2 NZLR 498, 499.

8. Schuster v Taetuli DC Invercargill FP 117-92, 7 October 1992.