A recent case from the Central London County Court, Langley v Qin, addressed issues of a predatory marriage, including undue influence in making a will. The Court set aside a will made by Robert Harrington, which left his estate to his new wife, Guixiang Qin, excluding his daughter. One of the grounds for the Court’s decision was that Ms Qin had exerted undue influence over Mr Harrington.
In New Zealand, a will can be challenged if undue influence is suspected. The person claiming undue influence must prove that the will was created under pressure that overrode the testator’s wishes. Not all influence is considered undue. The testator can be guided by others, but the will must reflect the testator’s own wishes.
The physical and mental condition of the testator is relevant when determining how much pressure is needed to constitute undue influence. Factors such as age, physical frailty, and isolation are often present, particularly when the testator is elderly. Since undue influence often happens privately, direct evidence is not required. However, it is not enough to merely show that the alleged influencer had the opportunity and means to exert influence. The person making the claim must show that the alleged influencer’s control over the testator was such that the will would not have been made in the same way without it.
The Court will also consider whether the testator received independent legal advice. Although this alone does not prove the will was made freely, it can be an important factor.
Seeking legal advice when making a will is crucial. A lawyer can ensure that the will is valid, that the testator has the required capacity, and that steps are taken to safeguard against undue influence. For assistance, please contact Harmans at 03 379 7835 for expert advice.
