Legal Project Management Plan & Checklist
Purpose of this Guide: Welcome to the specialised practitioner roadmap for challenging will validity on the ground of lack of testamentary capacity in Queensland. Designed explicitly for caveator litigators, this guide covers medical subpoenas and capacity testing. Additional procedural resources can be found on the Queensland Government Portal and the Queensland Legislation Registry.
Jurisdiction: This guide applies to challenges in the Supreme Court of Queensland, Australia. Verify current guidelines on the official .
Governing Legislation: Succession Act 1981 (QLD). UCPR 1999 (QLD) Ch 6 (strict pleading r 149), Ch 7 (disclosure), Ch 15 (probate). Powers of Attorney Act 1998 (QLD) (capacity definitions).
Key Case Law: Banks v Goodfellow (1870) LR 5 QB 549 (4-part capacity test: understand nature of act, extent of property, claims of persons, no insane delusion). Sullivan v Sullivan [2025] QSC 20 (return of common form grant, triable capacity issues). Additional procedural resources can be found on the Queensland Government Portal and the Queensland Legislation Registry.
Evidence Sources: GP records, hospital notes, aged care facility records, MMSE scores (Mini-Mental State Examination), medication charts, treating specialist reports. Expert: geriatrician or forensic psychiatrist for retrospective capacity assessment. Additional procedural resources can be found on the Queensland Government Portal and the Queensland Legislation Registry.
Process at a Glance: (1) File Form 104 Caveat + Form 105 Notice in Support (8 days). (2) File Form 8 Appearance to Warning (8 days). (3) Subpoena medical/care records. (4) Audit records against Banks v Goodfellow criteria. (5) File Form 17 Defence with capacity particulars. (6) Instruct geriatrician/psychiatrist for retrospective assessment. (7) Disclosure (Form 19). (8) Mediation. (9) Trial. Practitioners should check the official Queensland Government Portal and Queensland Legislation Registry for regular procedure updates.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Solemn Form Probate (Caveator) - Challenge based on Lack of Capacity matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for TRUSTS_ESTATES cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
Subpoena and review medical records regarding deceased's cognitive state at will execution.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Draft and file Defence detailing cognitive incapacity under Banks v Goodfellow.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Obtain retrospective capacity assessment from geriatrician/psychiatrist.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
UCPR r 149 - strict pleading requirement for incapacity. The Defence must specify the nature and degree of cognitive impairment, the dates of diagnoses, relevant MMSE scores or medical assessments, and how these demonstrate failure to meet the Banks v Goodfellow criteria.
A bare allegation of 'lack of capacity' is insufficient and liable to be struck out.
Expert evidence on testamentary capacity - a retrospective capacity assessment by a geriatrician or forensic psychiatrist is typically the most persuasive evidence in a capacity challenge. The expert should specifically address each limb of the Banks v Goodfellow test.
The expert must comply with UCPR Part 5 (Expert Evidence) and the duties of an expert witness to the court.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.