Disclaimer — This guide provides general educational information only. It is not legal advice. Probate procedure and affidavit requirements can…
Disclaimer: This article is for general educational purposes only and does not constitute legal advice. Probate litigation in Queensland can involve strict time-limits, complex evidentiary rules and significant personal risk. If you believe you have grounds to contest (or defend) a grant of probate, consult an experienced Queensland succession-law solicitor without delay.
Despite the cinematic image of a peaceful “will reading”, real-world estates often spark disagreements. In the Supreme Court of Queensland, any “interested person” may lodge a caveat to halt, delay or revoke a grant of probate (or letters of administration). Below is an expanded guide to the principal grounds of challenge, the evidence the Court expects, and the practical fallout for executors and beneficiaries.
1. Lack of Testamentary Capacity – the Most Prevalent Ground
1.1 Legal Test
The leading authority remains Banks v Goodfellow (1870): at the time of signing, the testator must:
- Understand the nature and effects of a will.
- Know the extent of their property.
- Comprehend (and appreciate moral claims of) potential beneficiaries.
- Be free of any “disease of the mind” that distorts judgment.
1.2 Red-Flag Scenarios
| Indicator | Why It Raises Suspicion |
|---|---|
| Diagnosis of dementia or acquired brain injury | May impair memory, insight and judgment. |
| Rapid cognitive decline before execution | Capacity can fluctuate day-to-day; timing matters. |
| Radical departure from long-standing testamentary pattern | Suggests the testator may not have remembered past promises or familial obligations. |
| Home-made “death-bed” wills | Often lack professional capacity checks. |
1.3 Evidentiary Toolkit
Solicitor file notes, GP/geriatrician reports, neuro-psychological assessments, witness affidavits describing the testator’s lucidity, and contemporaneous letters or emails.
Practical tip for drafters: when capacity is borderline, arrange a doctor’s certificate on the day of signing and keep detailed attendance notes.
2. Undue Influence and Coercion – Subtle but Potent
2.1 What Qualifies as “Undue”?
Mere persuasion or appeal to affection is not enough. The challenger must show coercive pressure that overbore the testator’s free will – a high evidentiary bar.
2.2 Typical Fact Patterns
- Caregiver domination: The sole live-in child who controls medications, restricts visitors, and ends up inheriting the entire estate.
- Isolation tactics: New “friend” who severs the testator’s contact with long-time family, drives them to solicitor, sits in on meetings.
- Threats or dependence: Explicit or implicit threats to withdraw care or companionship unless the will is changed.
2.3 Court’s Approach
Direct evidence is rare; courts rely on powerful circumstantial factors, shifting the evidentiary burden once “suspicious circumstances” emerge (see Nicholson v Knaggs (2009) 76 ATR 10).
3. Fraud, Forgery or “Sham” Wills
3.1 Signature and Document Alteration
- Cut-and-paste pages replacing bequests.
- Signatures that fail forensic handwriting comparison.
3.2 Misrepresentation at Execution
E.g., the testator is told the document is a power of attorney when it is actually a will.
Consequence: probate refused and often referral to police.
4. Failure to Meet Formalities – But Note the “Dispensing Power”
Under s 18 of the Succession Act 1981 (Qld), the Court may admit an informal document as a will if satisfied it was intended to operate as such. Nevertheless, opposition often cites:
- Only one witness present.
- Beneficiary acting as sole witness (raising suspicion even if technically valid).
- Electronic signatures without contemporaneous witnesses.
Executors defending a will should gather every scrap of evidence showing the deceased intended the document to be their last will: texts, emails, file notes, video messages.
5. Existence of a Later Will or Codicil
A challenger may produce:
- A professionally drafted later will held in another solicitor’s safe custody.
- A digitally dated and properly witnessed PDF stored in cloud.
- A handwritten codicil expressly revoking earlier dispositions.
If proved, the earlier grant is set aside (revocation proceedings), and probate issues for the later document.
6. Statutory Revocation Events
| Event | Effect on Earlier Will | Typical Contest Scenario |
|---|---|---|
| Marriage (unless will made in contemplation) | Entire will revoked (s 14 Succession Act) | Partner of second marriage alleges earlier pre-marital will favoured adult children but is now void. |
| Divorce | Gifts to former spouse and appointment as executor/trustee revoked (s 15) | Ex-spouse seeks to propound old will; children caveat on revocation ground. |
| Physical destruction | Intentional tearing/burning revokes | Fragmented will found; caveator claims testator destroyed it with revocatory intent. |
7. Allegations the Executor Is Unfit or Disqualified
Sometimes the validity of the will is uncontested, yet parties object to the appointment of a particular executor because they are:
- Bankrupt or under external administration.
- Mentally incapacitated.
- In serious conflict of interest (e.g., living rent-free in estate property, refusing to sell).
The Court may grant letters of administration with the will annexed to an independent professional such as the Public Trustee.
8. Procedural Pathway: How a Probate Contest Unfolds
8.1 Lodging a Caveat
Any person with a “proper interest” files Form 116 in the Supreme Court registry before probate is granted. The caveat lapses after six months unless renewed.
8.2 Executor’s Response
The executor can either:
- Wait (probate cannot be sealed while a caveat is active).
- Issue a warning requiring the caveator to state grounds formally.
- Apply to summarily remove an unmeritorious caveat.
8.3 Contentious Proceedings
If the caveator presses on, the matter converts to probate litigation: affidavit evidence, expert reports (medical or handwriting), cross-examination, mediation orders, and potentially a full trial.
Time-limits: A spouse, child or dependant who instead wishes to pursue a family provision claim (different from validity contests) must notify the executor within 6 months of death and file the claim within 9 months.
9. Impact on Estate Administration
| Contested Factor | Delay | Extra Cost (est.) | Who Pays? |
|---|---|---|---|
| Simple caveat, later withdrawn | 1–3 months | $3–5 k legal fees | Usually estate (court discretion) |
| Capacity/undue influence trial | 12–24 months | $40–100 k+ | Generally from estate, but loser can face personal cost orders for frivolous claims |
| Fraud/forgery allegations (expert evidence) | 18 months+ | $60 k+ plus forensic fees | Estate initially; court can order culpable party to indemnify |
10. Case Study – Contest Based on Undue Influence
Facts
Mr Taylor, 88, changed his will six weeks before death, leaving his $1.5 million Brisbane home solely to a new neighbour who had begun “helping with groceries”. His two adult children file a caveat alleging undue influence.
Key Evidence
- Medical records: mild cognitive impairment but not dementia.
- Witness affidavits: neighbour was present during solicitor interview and answered questions for Mr Taylor.
- Bank statements: large cash withdrawals by neighbour in prior months.
Outcome
After mediation fails, the Court finds the neighbour exerted undue influence. Probate is refused for the last will; an earlier will (equally benefitting the children) is admitted.
11. Minimising Risks – Planning and Executor Tips
- Professional drafting + capacity note: use an experienced solicitor.
- Independent witnesses: never rely on beneficiary witnesses for a frail testator.
- Regular reviews: update wills after marriage, divorce, major asset changes.
- Transparent communication: while testators need not disclose details, a surprise disinheritance fuels litigation.
- Consider video evidence: a brief video confirming the testator’s wishes can rebut claims of incapacity (though not a substitute for proper execution).
Key Takeaways
- Capacity, undue influence, and formal execution errors are the three most litigated issues in Queensland probate contests.
- Anyone with an interest may lodge a caveat; the executor can challenge frivolous caveats but should prepare robust evidence to defend valid ones.
- Early, transparent and professionally documented estate planning remains the best antidote to costly probate battles.
Disclaimer: This expanded overview is informational only. Probate disputes are fact-intensive and time-critical. Always seek personalised legal advice.