Challenging a will's validity in Queensland: capacity, undue influence and suspicious circumstances

Testamentary capacity

The will-maker must understand that they are making a will and its effect, know in general terms what they own, appreciate who might reasonably expect to benefit, and be free of any disorder of mind that distorts those judgments.

A dementia diagnosis does not by itself prove incapacity, and a lucid interval can be enough. Capacity is assessed at the time of instructions and execution, which is why contemporaneous medical records and the file notes of the solicitor who took instructions usually decide these cases.

Knowledge and approval, and suspicious circumstances

The will-maker must know and approve the contents of what they signed. Where a major beneficiary arranged the will, drove the will-maker to the appointment, gave the instructions, or the will-maker was blind, frail or illiterate, the court looks harder and the person propounding the will must dispel the suspicion.

Undue influence

This is coercion — the will-maker's own wishes being overborne — not persuasion or the ordinary influence of a close relationship. It is a demanding ground and is rarely made out on suspicion alone. Isolation of the will-maker, sudden changes benefiting a carer or new partner, and control of communication are the patterns that support it.

Execution, informal wills and forgery

A Queensland will must be in writing, signed by the will-maker, and witnessed by two witnesses present at the same time. Defects can invalidate a will — but the court also has power to admit an informal document, including in some cases a note or an electronic document, where it is satisfied the deceased intended it to operate as their will.

Allegations of forgery require handwriting and forensic evidence and should never be made lightly.

Practical first steps

Lodge a caveat with the registry if probate has not yet issued and there is a real basis to challenge — it prevents a grant being made without notice to you. Request the will file from the solicitor who prepared it, and the deceased's medical records covering the relevant period.

If the will fails, the previous valid will operates; if there is none, the intestacy rules apply — so check whether invalidating the will actually improves your position before you spend money on it.

Frequently asked questions