Legal Project Management Plan & Checklist
Purpose of this Guide: Use this plan when your client is the executor named in a will and someone has lodged a caveat with the Queensland Supreme Court to challenge the will's validity. Once a caveat is lodged, you can no longer obtain probate informally - you must apply to prove the will in solemn form, which means a full court hearing where the will's validity is established against the challenger. Open this plan as soon as you receive notice of a caveat or a citation. Verify current guidelines on the official Queensland Legislation. Access services via the Queensland Courts.
Jurisdiction: Supreme Court of Queensland (Trial Division). The solemn form process is initiated by the propounding executor filing a motion to prove the will after the caveat is lodged. Forks address the specific situation where the will does not meet formal validity requirements and the executor must apply to have it admitted as an informal will under s 18 of the Succession Act 1981 (QLD).
Use this fork when the deceased's document purporting to be a will does not meet the formal execution requirements - for example, it was not signed by the deceased, not properly witnessed, or was a draft, an email, a text message, or a handwritten note. Despite these defects, Queensland law allows the court to admit an informal document to probate if it is satisfied the document records the deceased's testamentary intentions. Open this fork when the document exists and there is evidence it reflects what the deceased wanted. Verify current guidelines on the official Queensland Legislation. Access services via the Queensland Courts.
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 and took instructions to swear an affidavit about the circumstances of the will's execution. Obtain medical records and, if required, a medical expert opinion confirming capacity. File the motion to prove in solemn form. Exchange evidence with the caveator. Attend directions hearings and manage the timetable. At trial, call your evidence and establish each element of the Banks v Goodfellow capacity test. Verify current guidelines on the official Queensland Legislation. Access services via the Queensland Courts.
Key Legislation and Case Law: Succession Act 1981 (QLD) ss 8-11 (formal validity) and s 18 (informal wills). Uniform Civil Procedure Rules 1999 (QLD) Chapter 15. 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. Evidence from the will-drafting solicitor carries significant weight: Buckenara v Hawthorn FC [1988] VR 39.
* 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 TRUSTS_ESTATES cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
Conduct registry search for active Form 104 Caveats and review the contested will.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Section 10 Succession Act 1981 (QLD) - formal requirements for valid will execution: (a) Signed by the testator (or at testator's direction) (b) Signature made or acknowledged in the presence of two or more witnesses present at the same time (c) Each witness attests and signs the will in the presence of the testator.
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 file Supreme Court Form 2 Claim and Form 16 Statement of Claim to prove the will.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Receive Defences, file Replies, and complete document disclosure.
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.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
The burden of proof lies on the propounding party to establish the will's validity in solemn form - Nock v Austin (1918) 25 CLR 519.
Where suspicious circumstances are raised, the propounding party must affirmatively prove the testator knew and approved of the will's contents - Barry v Butlin [1838] EngR 814.