When the court requisitions a probate application over capacity

What a requisition actually is

A requisition is not a refusal and it is not litigation. The registrar reviews every application for a grant and writes to the applicant's solicitor listing the matters that must be answered before the grant issues. Many requisitions are mundane — a name spelled two ways, a missing advertisement, an unexplained mark on the will.

A capacity requisition is different in tone. The registrar is saying the material as filed does not satisfy the court that the will-maker knew what they were doing. The application sits in abeyance until the executor files further affidavit evidence. Left unanswered, it simply never becomes a grant.

What triggers a capacity requisition

The registrar works from the documents in front of them — the death certificate, the will and the executor's affidavit. Two things do most of the triggering:

• The cause of death on the certificate names a condition associated with cognitive decline: Alzheimer's disease or another dementia, a cerebral tumour or metastases to the brain, a stroke, Parkinson's disease with dementia, hepatic encephalopathy, or a long terminal illness with heavy pain relief
• The will was signed close to death — there is no fixed cut-off, but a gap of days or a few weeks invites a question, particularly where the will-maker was in hospital or palliative care
• The will was made in circumstances that look unusual: a large change from an earlier will, a substantial benefit to a recent carer or new partner, or a will prepared without a solicitor
• The will is signed by mark, or by a third person at the will-maker's direction, or the attestation clause does not recite that the will was read to the will-maker

The test the court is applying

Queensland still applies the test from Banks v Goodfellow. The will-maker must understand that they are making a will and what it does, understand in general terms what they own, recall the people who might reasonably expect to be provided for, and not be affected by a disorder of the mind that distorts their decisions.

Two points matter when you are answering a requisition. First, capacity is judged at the time the will was executed, not before and not after — a diagnosis of dementia is not the same as incapacity, and a person with moderate dementia can have a lucid and capable morning. Second, where the will is rational on its face and properly executed, the law presumes capacity; the requisition asks the executor to displace the suspicion the material has raised, not to prove capacity from scratch.

How a solicitor should respond

The response is affidavit evidence, filed in the existing application. Resist the urge to argue with the registrar in correspondence; answer the question with material. In practice the response is built in this order.

• Get the will file. The file of the solicitor who prepared the will is the single most valuable document — attendance notes, the instructions sheet, correspondence, any capacity assessment obtained at the time
• Affidavit of the drafting solicitor. What was asked, what was answered, whether instructions were taken alone, whether the will was read over, how the will-maker presented, what they said about their assets and family
• Affidavit of the attesting witnesses. What they observed on the day, whether the will-maker appeared to understand, whether anyone else was present
• Medical evidence. The treating GP's or specialist's affidavit or report addressing cognition around the date of execution, and if useful the hospital chart notes for that admission — a nursing note recording an oriented and conversational patient on the relevant morning can be decisive
• Affidavit from the executor or family explaining the gap between the diagnosis on the death certificate and the will-maker's day-to-day functioning, and explaining any change from the earlier will in ordinary human terms
• A short affidavit explaining the death certificate itself where the fatal condition had no cognitive effect — a metastatic cancer that never reached the brain, for example

If the evidence does not answer the question

Sometimes it cannot be answered on the papers. The drafting solicitor has died or retired without a file, the will was homemade, or the medical picture is genuinely bad. The application may then have to move from the registry to a judge, or the executor may need to apply for a grant in solemn form so the will's validity is determined with the beneficiaries and the disappointed parties before the court and bound by the result.

That is a significant step up in cost and time, and it is worth being candid with the executor early. It is also worth remembering that an executor who applies in solemn form and acts reasonably will usually have their costs paid out of the estate. What an executor should not do is hold the requisition, do nothing and hope — beneficiaries become impatient and the estate carries the delay.

The evidence to gather when the will is signed

Almost every capacity requisition is easier to answer when the drafting solicitor did a handful of unremarkable things at the time. If you are a solicitor taking instructions from an elderly, unwell or hospitalised client, this is the file you want to be able to produce years later.

• Take instructions alone. No adult child, no new partner, no carer in the room — and record in the note that you did so and who was asked to wait outside
• Write a contemporaneous attendance note, not a reconstruction. Record the actual questions and the actual answers, in the client's words where you can
• Record the Banks v Goodfellow elements expressly: that the client knew they were making a will, their description of their assets, who they named as family and others with a claim, and their stated reasons for any person being left out or left less
• Where there is any doubt, obtain a written capacity assessment before execution from the treating GP, geriatrician or psychiatrist — addressed to testamentary capacity specifically, not to general competence or to capacity to manage finances
• Record why the client is changing their will and how the change came about, particularly where a beneficiary is added or dropped
• Note the practical context: where the meeting happened, who arranged it, how long it ran, the client's presentation, whether they were on pain relief and whether they seemed affected by it
• Have the will read over aloud where the client is frail or has impaired vision, and say so in the attestation clause
• Keep the file, the notes and the medical letter together, and do not destroy them when the file closes

Where Coastside Law comes in

We act for executors across Queensland, from our offices at 40 Theresa Street, Golden Beach and at Scarborough, and we can take over an application that has stalled on a requisition even where another firm filed it. That usually means obtaining the will file, briefing the medical evidence, drafting the affidavits and filing the response.

We also prepare wills for clients who are elderly, unwell or in hospital, and we build the capacity evidence into the file at the time. It costs very little on the day and it is the difference between a grant that issues in a few weeks and an estate that spends a year in the registry.

Probate requisitions and capacity — common questions