A Practical Guide for Executors and Families in Queensland
When a loved one dies in Queensland and the signed original Will can’t be found, many executors assume the estate must go intestate. Not always. In some cases, the Supreme Court of Queensland may still grant probate of a copy—if you provide the right evidence and follow the proper steps. Under section 18 of the Succession Act 1981 (Qld), the Court can dispense with the usual execution requirements where the document (or copy) reflects the deceased’s testamentary intentions.
Below is a plain-English roadmap so you can move forward confidently.
1) First, confirm the original is truly missing
Document your search:
- Check the home, safe, files, email/scans, and cloud folders.
- Ask the drafting lawyer, bank, financial adviser, and the Will’s witnesses.
- Keep a written log—where you searched, who you contacted, and dates.
This log becomes part of your lost Will evidence.
2) When a copy may still be accepted
The Court can admit a copy if you prove, on the evidence, that:
- a valid Will existed and what its terms were,
- the deceased did not revoke it (i.e., they didn’t destroy it intending to cancel it), and
- the copy is a true and complete representation of that Will.
Courts look for affidavit proof addressing those points; the detail matters.
💡 Practical tip:
if the Will was prepared by a solicitor, their file notes and an affidavit from that firm often carry real weight.
3) What evidence does the Court expect (lost-Will affidavit)
Your supporting affidavit usually covers:
- How the original went missing and the steps taken to find it,
- Why do you believe the Will wasn’t revoked?
- Who last saw the original, when, and in what circumstances?
- How the copy was created (photocopy/scan/draft) and why it’s reliable,
- The Will’s execution details (e.g., who witnessed it) and the testator’s capacity.
The Uniform Civil Procedure Rules set out core affidavit content for probate applications; be precise and comprehensive to avoid requisitions.
4) Notices you must publish (QLR basics)
Before filing, publish a Notice of Intention to Apply for Probate in the Queensland Law Reporter (QLR). Then wait 14 clear days; you can file on day 15 (or the next business day if the registry is closed). The purpose is to give anyone with an interest a fair chance to object.
Match the names and dates exactly between your notice and your application—mismatches are a common source of delay.
5) Common pitfalls that cause delays
- Thin or vague affidavits that don’t show the searches or address revocation concerns.
- Copies that are illegible, incomplete, or inconsistent with other versions.
- Skipping or misstating QLR notice details or waiting period.
- Overlooking witness or solicitor evidence that could have strengthened the case.
6) Likely outcomes (so you know the range)
Depending on the evidence, the Court may:
- Grant probate of the copy (best case),
- Admit part of a damaged Will where terms are provable,
- Refuse probate (estate then follows intestacy rules).
7) When to call a lawyer
If the original is missing, early legal help can save weeks: a probate lawyer can prepare the lost-Will affidavit, line up witness/solicitor statements, ensure notice compliance, and head off registry requisitions. (If your matter raises “informal Will” issues—notes, drafts, letters—be aware the s 18 threshold is real; not every document will qualify. Recent cases show the Court applies this power carefully.)
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Book a fixed-fee clarity consultation. We’ll check your documents, map the evidence we need, and prepare your application properly the first time.
Frequently Asked Questions
Can I get probate in QLD with only a copy of the Will?
Yes—if you satisfy the Court (by affidavit evidence) that a valid Will existed, the copy reflects its terms, and the testator didn’t revoke it. Expect to file detailed evidence and supporting statements.
What if the Will is partially damaged (burnt/torn) but mostly readable?
The Court can sometimes admit the undamaged sections if the evidence supports the Will’s terms and there’s no sign of intentional revocation. You’ll still need robust affidavits.
We found multiple versions/copies. Which one will the Court accept?
Courts look for the last Will and the most reliable evidence of its terms and execution. Conflicting versions increase scrutiny; solicitor/witness evidence often decides it.
How long will a lost-Will application take?
Allow time for the QLR notice (14 days), affidavit preparation and any requisitions. Lost-Will matters typically take longer than standard probate because the Court needs more proof.
Do all beneficiaries have to consent?
No. Consent isn’t mandatory; however, objections (or family disputes) can trigger a hearing and delay the grant.
What if witnesses can’t be located?
It’s still possible, but harder. You’ll rely more on solicitor file notes, prior Wills, emails, and other contextual proof to show the copy reflects the deceased’s intentions.
What if there’s only a typed draft or a computer file?
That moves toward an informal Will argument under s 18—the Court can dispense with formal requirements, but only if the document truly reflects final testamentary intent. Expect a higher evidentiary burden.
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