Legal Project Management Plan & Checklist
Purpose of this Guide: This guide provides caveator litigators with a specialised roadmap for challenging a will's validity in Queensland based on a lack of testamentary capacity. It covers everything from securing medical subpoenas to handling capacity testing. Extra resources are available on the Queensland Government Portal and the Queensland Legislation Registry.
Jurisdiction: This applies to challenges made in the Supreme Court of Queensland, Australia. Make sure to confirm any guidelines via the .
Governing Legislation: Succession Act 1981 (QLD). UCPR 1999 (QLD) Ch 6 (which requires strict pleading under r 149), Ch 7 (disclosure), and Ch 15 (probate). Also see the Powers of Attorney Act 1998 (QLD) for capacity definitions.
Key Case Law: Banks v Goodfellow (1870) LR 5 QB 549 established the 4-part capacity test (the person must understand the act, the property involved, who might have claims, and not suffer from an insane delusion). See also Sullivan v Sullivan [2025] QSC 20 (return of common form grant, dealing with triable capacity issues). More case details can be found on the Queensland Government Portal and the Queensland Legislation Registry.
Evidence Sources: Important evidence typically includes GP records, hospital notes, aged care facility files, MMSE scores, medication charts, and specialist reports. You'll likely need an expert, such as a geriatrician or forensic psychiatrist, for a retrospective capacity assessment. More information is available on the Queensland Government Portal and the Queensland Legislation Registry.
Process at a Glance: Start by filing a Form 104 Caveat along with a Form 105 Notice in Support (within 8 days). Then, file a Form 8 Appearance to Warning (also within 8 days). From there, you'll need to subpoena medical and care records, auditing them carefully against the Banks v Goodfellow criteria. After filing a Form 17 Defence with specific capacity particulars, instruct a specialist for a retrospective assessment. The process wraps up with Form 19 disclosure, mediation, and a trial if necessary. Check the Queensland Government Portal and Queensland Legislation Registry for any updates to these procedures.
* 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.