Grounds to Challenge the Validity of a Will in Queensland

There is an important difference between saying a will is unfair and saying a will is invalid. If you were left out or left less than you expected, that is usually a family provision claim, which accepts the will as genuine but asks the court to adjust it. Challenging validity is a separate argument: you are saying the document should not stand as the deceased's true, legally effective will at all. If a validity challenge succeeds, the court sets that will aside, and the estate is distributed under an earlier valid will or, failing that, under Queensland's intestacy rules.

Start by identifying the concern: capacity, coercion, authenticity, execution, or whether the deceased understood and approved the document. That determines which records to preserve and whether steps may be needed before probate is granted. This page provides general information, not legal advice.

The distinction affects what must be proved, which evidence should be preserved and which deadlines may apply. Identifying the correct type of claim early can also prevent work being spent on an argument that does not address the real problem.

A family provision application under section 41 of the Succession Act 1981 (Qld) does not attack the will. It says: the will is valid, but it fails to make adequate provision for me as an eligible person. For a family provision application, section 44 of the Succession Act 1981 (Qld) generally requires notice to the personal representative within six months after death and filing within nine months after death, although the court can consider a late application in limited circumstances. Our page on time limits for contesting a will in Queensland covers those deadlines in detail.

A validity challenge says the will itself is defective and should not be admitted to probate. The grounds below go to how the will was made, the deceased's mental state, or whether the document is even authentic. The two arguments can sometimes run together, but they answer different questions, and a validity challenge is often factually harder to prove.

For a will to be valid, the person making it (the testator) must have had the mental capacity to do so at the time they signed it. Queensland courts apply a long-standing common law test, usually traced to the English case Banks v Goodfellow (1870) LR 5 QB 549. In plain terms, the testator must have:

• understood that they were making a will and what a will does;
• understood, in general terms, the nature and extent of what they owned;
• appreciated who might reasonably expect to benefit (a spouse, children, dependants); and
• not been affected by a disorder of the mind that distorted their sense of what was right, so that they made gifts they would not have made with a sound mind.

Capacity is judged at the moment the will was made, not before and not after. Because conditions like dementia fluctuate, a person can have a valid "lucid interval" even with a diagnosis. Conversely, a person can appear ordinary in conversation yet hold a fixed delusion that poisons the will, for example a false, unshakeable belief that a devoted child had been stealing from them.

Relevant evidence can include medical records and cognitive assessments close to the signing date, the will-drafting solicitor's file, evidence from the witnesses, and observations from carers or relatives who saw the testator at that time. Where a will was professionally drafted and the solicitor made careful notes, capacity is harder to dislodge. Where a homemade will appeared during a period of serious illness, questions are easier to raise.

Undue influence means the will did not reflect the testator's own wishes because someone coerced them. The key word is coercion. It is not enough that a relative was persuasive, or that the testator was frail and reliant on the person who benefited, or even that the outcome seems unfair. Influence becomes undue only when the pressure overpowered the testator's own judgement so that the will records another person's intentions, not theirs.

This is one of the hardest grounds to prove, because the person who could explain what happened has died, and coercion rarely happens in front of witnesses. The court may consider the testator's dependence on the beneficiary, physical or cognitive vulnerability, who arranged the appointment and witnesses, whether instructions were taken privately, and whether the new gifts departed sharply from earlier wills or consistently expressed wishes. Suspicious circumstances alone are not proof, but a combination of them can shift a court toward closer scrutiny.

Undue influence in wills is different from the "presumed undue influence" that can apply to gifts made during a person's lifetime. For a will, there is no presumption to lean on. The person alleging it carries the burden of proving actual coercion.

This ground covers two situations. Forgery is where the signature or the document itself is fake, for example a signature traced or written by someone else. Fraud may arise where deception caused the will to be made in terms that did not reflect the testator's true intentions. One specialised allegation, sometimes called fraudulent calumny, concerns a person deliberately poisoning the testator's mind against a potential beneficiary with statements they knew were false, or did not genuinely believe. The precise elements are demanding and should be assessed against the evidence.

These are serious allegations and courts require correspondingly strong evidence. Handwriting analysis, the circumstances in which the will surfaced, inconsistencies in the witnessing, and the conduct of the person who benefited are all relevant. Because fraud and forgery accuse someone of dishonesty, they should never be raised lightly or as a pressure tactic.

Queensland law sets out formal requirements for a valid will. Under the Succession Act 1981 (Qld), a will generally must be in writing, signed by the testator (or by someone else in their presence and at their direction), with the signature made or acknowledged in the presence of two witnesses who are present at the same time and who then sign the will themselves (Succession Act 1981 (Qld) s 10). Getting these steps wrong can put a will's validity in question.

An execution defect is not always fatal. Section 18 allows the court to recognise a non-compliant document if it is satisfied that the deceased intended the document to operate as their will (Succession Act 1981 (Qld) s 18). That "dispensing power" has been used for informal documents and, in some cases, electronic records, and the same power can mean an informal document is admitted when someone hoped a technicality would exclude it.

Even where capacity exists and there is no coercion, a will can be challenged if the testator did not actually know and approve its contents. This can arise where the testator was blind, illiterate, or signed a document they had not read, or where a person who prepared the will took a substantial benefit under it. In those "suspicious circumstances", the person putting the will forward may have to affirmatively satisfy the court that the testator understood and approved what they were signing.

A validity challenge is usually raised in the Supreme Court of Queensland, which has jurisdiction over probate. Before a grant, a person with a proper interest may lodge a probate caveat so that a grant is not made without the dispute being addressed. A caveat does not decide whether the will is valid, and lodging one without a proper basis may have costs consequences. Because caveat procedure and duration are technical, obtain advice promptly. Timing matters, because once an estate is administered and assets distributed, unwinding it is far harder.

What to preserve before evidence disappears:

1. Keep a copy of every version of the will and any covering correspondence.
2. Write down when, where and from whom the disputed document emerged.
3. Identify the drafting solicitor and both witnesses.
4. Preserve messages concerning instructions, signing, isolation or pressure.
5. Record the deceased's treating doctors and care facilities around the signing date.
6. Obtain legal advice before contacting witnesses or alleging fraud.

Do not alter original documents, and do not access private accounts, mail or devices without proper authority. Handling originals carelessly, or reaching witnesses before advice, can damage a case that would otherwise have merit.

Identify the type of dispute early. If the will is genuine but leaves an eligible person without adequate provision, a family provision application may address the problem more directly than a validity challenge. Our guide on being left out of a will in Queensland and the overview at contesting a will explain that route, while disputes with the executor cover a different problem again: a valid will, administered badly.

A practical first step is to build a signing-date timeline. Put the disputed signing date in the centre, then add medical appointments, changes in care, solicitor meetings, earlier wills and relevant messages from the surrounding weeks. This can show which records and witnesses bear directly on the suspected ground, and it often reveals whether an initial suspicion is worth investigating or falls away once the surrounding facts are lined up.

For example, consider a will signed six weeks after a dementia diagnosis that substantially benefits the relative who arranged the appointment. Those facts raise questions, but they do not establish invalidity. The assessment would also examine whether the solicitor met the testator alone, recorded coherent instructions, discussed the estate and potential beneficiaries, and obtained contemporaneous medical input. Strong independent records may answer the suspicion; missing or inconsistent records may justify closer investigation.

These are screening indicators, not proof. No single factor decides the outcome. The burden depends on the issue being raised: a person alleging undue influence or fraud must prove that allegation, while evidence casting real doubt on capacity or knowledge and approval may require the person seeking probate to answer that doubt. The precise position is fact-sensitive, so the evidence and applicable authorities should be assessed before proceedings are started.

Is challenging a will's validity the same as contesting it? Not quite. People use "contest" loosely for both. Challenging validity says the will is not legally effective, on grounds such as lack of capacity, undue influence, or forgery. Contesting through a family provision claim accepts the will but asks the court to adjust it because you were not adequately provided for. They have different tests and different deadlines.

What happens to the estate if a will is declared invalid? The court sets that will aside. If there is an earlier valid will, the estate is distributed under it. If there is no earlier valid will, the estate passes under Queensland's intestacy rules. Our guide on dying without a will in Queensland explains that order of distribution.

Is there a time limit to challenge a will's validity? Validity challenges are best raised before probate is granted, which is why acting early and, where appropriate, lodging a caveat matters. This differs from the strict family provision timeframes of six months' notice and nine months to file. Because timing rules are technical, get advice as soon as you have concerns.

Do I need medical evidence to argue lack of capacity? Not necessarily, although medical records can be important. Courts may also consider the drafting solicitor's notes, evidence from witnesses and carers, the testator's conduct, earlier wills and the complexity of the estate. The value of medical evidence depends on how close it is to the signing date and whether it addresses the legal test for testamentary capacity.

Can a professionally drafted will still be challenged? Yes, but it is generally harder. A careful solicitor's file, contemporaneous notes, and proper witnessing all make capacity and execution challenges more difficult to sustain.

If you suspect a will is invalid, obtain advice before contacting witnesses, accusing a beneficiary of wrongdoing or handling original documents. A solicitor can identify the relevant ground, check whether a probate caveat should be considered and help preserve the evidence needed to assess the claim.

Queensland Family Law Practice advises Queensland families on wills and estate disputes from its Kelvin Grove office in Brisbane and Birtinya office on the Sunshine Coast. To talk through your situation confidentially, call (07) 3172 3777, email enquiries@qflp.com.au, or book a consultation online.