Background
Hendrik Philippus Berend Drent died in March 2025 aged 88. His last known will, executed on 21 March 2023, appointed Adam Jamie Watkins executor and trustee and named him as a beneficiary. Two earlier wills, from 2013 and 2016, also left the estate to different people close to the deceased at the relevant times. None of the three wills mentioned the deceased’s nephew, Hendrikus Borcherdt.
Mr Borcherdt lodged a caveat against probate, alleging that the deceased lacked testamentary capacity when signing the 2023 will and that Mr Watkins exercised undue influence. He also raised concerns about Mr Watkins’ handling of property and estate assets. Mr Watkins applied under r 626 of the Uniform Civil Procedure Rules 1999 (Qld) to set the caveat aside and admit the 2023 will to probate.
The Court’s Holding
Freeburn J held that Mr Borcherdt lacked a sufficient interest in the estate to maintain the caveat. Although he could potentially benefit on an intestacy, that prospect was not realistic because there were three wills spanning a decade, none benefiting him, and he had not challenged the earlier wills. Following Gardiner v Hughes, the Court held that a person claiming through intestacy lacks standing where a prior, unchallenged will would still prevent that person from taking.
The Court also held that the material did not raise doubt as to whether probate should be granted. Much of Mr Borcherdt’s material was hearsay, rumour or unsupported suspicion. There was no admissible medical evidence creating a realistic concern about capacity at the time of execution, while due execution supplied prima facie evidence of testamentary capacity. The undue-influence allegation was likewise unsupported; the deceased’s dependence on Mr Watkins did not itself establish influence.
Key Takeaways
- A probate caveator must show a real proprietary interest that would be affected by the grant.
- A possible intestacy interest is insufficient where unchallenged earlier wills would still exclude the caveator.
- Mere suspicion, hearsay and unsubstantiated concerns about capacity or undue influence do not create the requisite doubt for resisting probate.
Why It Matters
The decision confirms that caveats cannot be used by relatives with no beneficial entitlement under any known will simply to investigate concerns about an executor or estate administration. A person relying on an intestacy interest must show that intestacy is a realistic outcome, including by putting all intervening wills in issue where necessary.
The case also illustrates the evidentiary threshold under r 626: allegations of incapacity or undue influence must be supported by probative evidence, not speculation or second-hand accounts.