What happens where a person has died and there is a dispute as to whether they had capacity to make their last will?

That can put the executor named in the last will in a difficult position, as their role is dependent on the last will being valid. There are remedies available for both the proposed executor and the person disputing capacity.

A person can file a caveat in the Supreme Court, under rule 624 of the Uniform Civil Procedure Rules. That caveat can require proof of the will “in solemn form” which requires the Supreme Court to consider the circumstances surrounding the making of the will before granting probate.

The Court will then consider the relevant evidence surrounding the making of the will to determine whether the will maker had proper capacity to make the will. If it is satisfied, it will issue a grant in solemn form.

This was done recently in the matter of Campbell V Campbell [2022] QSC 34. The judgment is worth reading to see the sorts of factor that are taken into account.


For enquiries about wills and estates, please contact Jessica Murray or Peter Muller, on 5574 0111.