Our client’s father died in 2025.
Years earlier, in 2019, he had signed a new will. By then, our client believed his father’s memory and judgment had been declining for years.
Our client had real doubts that his father understood what he was signing. ezylegal lodged a caveat to stop the will being approved without proper proof, and the matter went to the Supreme Court of Queensland. Our client negotiated a better outcome than the will had given him.
At a glance
- Problem: A father signed a new will in 2019, after years of cognitive decline, raising doubts about whether he had the capacity to make it.
- Claim against: A family member seeking to have the will proved.
- Legal basis: Lack of testamentary capacity. The will was challenged by caveat and required to be proved in solemn form.
- Result: A negotiated settlement giving our client a better outcome than he would have received under the will.
Years of cognitive decline
Our client had watched his father’s memory and decision-making decline over several years before the will was signed. Cognitive decline is usually gradual, and our client believed it was well advanced by 2019.
The challenge came down to one question: testamentary capacity. Did his father, when he signed, understand what a will is, roughly what he owned, and who would normally expect to benefit from it?
A caveat and the Supreme Court
In Queensland, a will is usually approved by the Supreme Court through probate. ezylegal lodged a caveat in the father’s estate. That stopped the will being approved in the usual way, called common form. Instead, it had to be proved in solemn form, a formal court process where the will’s validity must be established with evidence.
A family member then filed a claim to prove the will. ezylegal filed a defence and counterclaim for our client. We also sought the father’s medical records from his treating hospitals and GP, and served notices requiring non-parties to produce records of his cognitive decline.
The outcome
With the medical evidence being gathered and the court process underway, the family resolved the dispute.
Under the settlement, our client received a better outcome from his father’s estate than the will provided, without the cost and strain of a full trial between family members.
Can I challenge a will if my parent’s memory was declining?
Possibly. Memory loss or a diagnosed condition doesn’t automatically make a will invalid. The question is whether the person had testamentary capacity at the moment they signed.
Courts still apply the test from the 1870 case Banks v Goodfellow. The person must understand what a will is, roughly what they own, and who would normally expect to benefit. Medical records showing how a person’s cognition changed over time, especially around when the will was signed, are often the most important evidence. In Queensland, lodging a caveat stops probate being granted while the challenge is made.
Many will challenges never reach a final hearing. Once the evidence is on the table, families often negotiate a fairer division of the estate, which saves everyone the cost and strain of a trial.
If you’re facing something similar
If you have doubts about a parent’s will:
- ask the executor for a copy of the will, and any earlier wills
- note when the will was signed, and your parent’s health at that time
- think about which doctors, hospitals or aged care providers treated them
- write down what you saw of their memory and decision-making, with dates
- act quickly, because probate can be granted fast
Strict time limits apply to estate disputes, so get advice early. Read more about wills and estate disputes.
ezylegal operates on a no-win, no-fee* basis across consumer, commercial and insurance disputes, so you’re not weighing the cost of a lawyer against the cost of walking away.