Li v Smith - [2025] NZCA 587

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA37/2025

[2025] NZCA 587

BETWEEN XINFENG LI
Applicant
AND NIGEL PHILIP SMITH AND MARCUS
ELDON DIPROSE AS
ADMINISTRATORS OF THE ESTATE OF
FRANK JOHN LANE
Respondents

Court:	Katz and Collins JJ
Counsel:	W C Pyke for Applicant
T D Bloy and L D H Kim for Respondents

for a fixture. The substantive application in the High Court was brought by Mr James

Lane (Mr Lane Jnr) who was named as applicant because he was, at the time, the

trustee of the estate of his late father, Mr Frank Lane (Mr Lane Snr). However,

Mr Lane Jnr is no longer trustee of the estate as Messrs Nigel Smith and

Marcus Diprose were appointed administrators in late 2024.

The litigation focuses upon the validity of a will made by Mr Lane Snr on

8 April 2023 (the 2023 will), some four weeks before he died.

Background

On 14 December 2010, Mr Lane Snr made a will in which the residue of his

estate was to be divided among five of his six children.

In early April 2023, Mr Lane Snr was admitted to hospital to remove a tumour.

The surgery was not successful. Medical staff recorded that, following his surgery,

Mr Lane Snr exhibited signs of confusion, delirium, disorientation and agitation.

On 8 April a lawyer visited Mr Lane Snr in hospital and took instructions to

prepare the 2023 will. During this a number of friends and members of Mr Lane Snr’s

family were present, including Mr Lane Jnr and two other children, as well as Ms Li.

The consultation was recorded on video.

The 2023 will contained a $500,000 bequest in favour of Ms Li. The remainder

of the estate was to be equally divided amongst just three of Mr Lane Snr’s children,

including Mr Lane Jnr.

Mr Lane Jnr successfully challenged the validity of the 2023 will. In a

judgment delivered on 6 December 2024, Churchman J held that the 2023 will was

invalid because Mr Lane Snr lacked testamentary capacity and was subject to undue

influence.[1] The Judge granted probate in respect of the will created in 2010.

[1] Lane v Li [2024] NZHC 3663 at [238].

Ms Li filed a notice of appeal on 23 January 2025. There were, however,

defects in the notice which required an extension of time in which to bring the appeal

under r 29A of the Rules. The appeal was formally brought on 26 February 2025.

Rule 43(1) provides for a three-month time frame in which an appellant is

required to file a case on appeal and apply for a fixture unless an extension of time is

granted under r 43(2).[2]

[2] Under r 43(1B) of the Court of Appeal (Civil) Rules 2005, a Registrar may also, in certain cases,

On 29 April 2025, Ms Li applied for an extension of time in which to file the

case on appeal and apply for a fixture.

On 16 June 2025,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Li v Smith

Details

AGLC: Li v Smith [2025] NZCA 587
Case: [2025] NZCA 587
Decision Date: 6 November 2025 at 3.30 pm

CaseChat Overview and Summary

Xinfeng Li appeals against the decision of the High Court to invalidate the 2023 will of Frank John Lane. The appeal focuses on the extension of time for filing the case on appeal and applying for a fixture. The respondents, represented by the administrators of Mr Lane's estate, opposed the application on several grounds, including the lack of legitimate basis for the delay, the appellant's history of missing deadlines, the lack of merit in the appeal, and the prejudice caused to the estate and beneficiaries. The court considered the principles set out in Yarrow v Westpac New Zealand Ltd, focusing on the length of the delay, reasons for the delay, conduct of the parties, prejudice to the respondents, and the significance of the issues raised. The court found the delay to be short, accepted the appellant's explanation for the delays, and concluded that the appeal, while not particularly strong, was not devoid of merit. The court granted the application, requiring the appellant to apply for a fixture within 14 working days of the judgment.

The Court of Appeal granted Ms Li's application for an extension of time to file the case on appeal and apply for a fixture. The appeal was filed approximately 14 working days outside the prescribed time limit. The court accepted Ms Li's explanation for the delays, including the complexity of the issues in the High Court, difficulties with the record, and delays caused by new counsel being briefed. While the respondents argued that the appeal was devoid of merit and had caused significant prejudice to the estate, the court concluded that the appeal, though not particularly strong, was not so devoid of merit that it should be denied the opportunity to be heard. The court considered the overall interests of justice and granted the application, reserving costs to be determined at the time the appeal is heard or otherwise disposed of. Ms Li is required to apply for a fixture within 14 working days of the judgment.

Orders