Legal Project Management Plan & Checklist
Proving a will in solemn form in Queensland after a caveat: sue the caveator for the grant, close the pleadings, gather capacity evidence and go to trial.
What can an executor do when a caveat is lodged against a grant in Queensland?: If the caveator files a notice to support the caveat by the date in the registrar's notice, no further step can be taken on the application unless the caveat is set aside or withdrawn, but the applicant may start a proceeding against the caveator seeking the grant and serve the claim at the address for service in the caveat (Uniform Civil Procedure Rules 1999 (Qld) r 625(3) to (9)). Alternatively the applicant may apply to set the caveat aside where the evidence does not show the caveator has an interest or a reasonable prospect of one, or does not raise doubt about whether the grant should be made (r 626).
How is a solemn form proceeding brought to trial?: A party who is ready for trial signs a request for trial date in the approved form and serves it for the other parties to sign, and the court can dispense with a signature not returned within 21 days (UCPR rr 467 and 469). On the Wills and Estates List a proceeding is not allocated trial dates unless a request for trial date is filed or a judge orders otherwise (Amended Practice Direction 14 of 2023 para 26).
Admitting an informal will to probate in Queensland under Succession Act s 18: evidence of the deceased's intention, the application and the hearing.
How does the executor compel witnesses or records?: By filing a request for subpoena; the subpoena must be served by its last date for service, and a witness required to attend need not comply unless conduct money is tendered a reasonable time beforehand (UCPR rr 414, 415, 419 and 421). Documents directly relevant to an allegation in issue can also be obtained from a non-party by a notice of non-party disclosure (r 242).
Jurisdiction: Supreme Court of Queensland. The propounding executor starts a proceeding by claim against the caveator seeking the grant (UCPR r 625(8)); in Brisbane, complex wills proceedings may be placed on the Wills and Estates List under Amended Practice Direction 14 of 2023. A fork addresses an application to admit an informal will under s 18 of the Succession Act 1981 (Qld).
The Process at a Glance: On receiving notice of the caveat, do not attempt to obtain probate through the normal registry process. Advise the client to gather and preserve all evidence supporting the will's validity, especially evidence of the deceased's testamentary capacity. Brief the solicitor who prepared the will to give evidence about the circumstances of its execution. File the claim to prove the will in solemn form and review the caveator's defence. Obtain medical records by subpoena or non-party disclosure and, if required, a medical expert opinion. Exchange disclosure, attend directions hearings and mediation, and file a request for trial date when ready. At trial, call your evidence, then draw up and file the order.
Key Legislation and Case Law: Succession Act 1981 (Qld) s 10 (formal validity) and s 18 (informal wills). Uniform Civil Procedure Rules 1999 (Qld) - rr 624-628 (caveats), rr 242-244 (non-party disclosure), rr 414-421 (subpoenas), rr 467-469 (request for trial date), r 661 (filing an order). Amended Practice Direction 14 of 2023 (Wills and Estates List). The legal burden of proving capacity lies with the party propounding the will: Re Griffith; Easter v Griffith (1995) 217 ALR 284. Testamentary capacity assessed by Banks v Goodfellow (1870) LR 5 QB 549. The weight given to the opinion of the solicitor who prepared and witnessed the will depends on the circumstances, and if that view of capacity was not based on a proper assessment and accurate information it may be worth very little: Rowe v Sudholz [2019] QSC 306 at [149].
* 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 (Propounding Executor) 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 Wills and Estates cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
| Field | Token | Type | Required | Defined in |
|---|---|---|---|---|
| Matter(4) | ||||
| Matter numberⓘ | matter.matterNumber | text | Required | inheritedmatter-core |
| Matter title | matter.title | text | - | inheritedmatter-core |
| Matter typeⓘ | matter.matterType | text | - | inheritedmatter-core |
| Matter status | matter.status | text | - | inheritedmatter-core |
| Client(1) | ||||
| Client name | matter.clientName | text | Required | inheritedmatter-core |
Conduct registry search for active Form 116 Caveats and review the contested will.
Draft and file Supreme Court Form 2 Claim and Form 16 Statement of Claim to prove the will.
Receive Defences, file Replies, and complete document disclosure.
Attend mediation to attempt settlement before trial.
Attend Trial, present witness evidence, and obtain Solemn Form Grant.
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