Disclaimer — This article is for general educational purposes only and is not legal advice. Executor liability depends on the…
Disclaimer — This guide provides general educational information only. It is not legal advice. Probate procedure and affidavit requirements can change. Executors in Queensland should obtain personalised guidance from a succession-law solicitor before lodging any documents.
Probate delays caused by affidavit errors can leave beneficiaries without access to funds, intensify family tension and ratchet up legal costs. By contrast, a well-prepared affidavit accelerates the grant, protects the executor from personal liability and keeps the administration on schedule.
An affidavit is the backbone of every Queensland probate application. It is the executor’s sworn statement that the will is genuine, the facts are correct, and the Supreme Court may safely issue a grant. Meticulous affidavits speed up processing; sloppy ones trigger requisitions that can delay probate for weeks. Understanding their purpose, required content and common pitfalls helps executors fulfil their duties efficiently and lawfully.
Why Affidavits Matter
- Evidence-in-chief. The Probate Registry relies almost entirely on affidavit evidence rather than oral testimony, so accuracy is critical.
- Personal liability. False or incomplete affidavits may expose an executor to contempt of court, personal cost orders or even removal.
- Requisition reduction. Well-drafted affidavits anticipate Registry questions (e.g., staple holes, handwritten amendments) and head off the back-and-forth that adds weeks to a file.
Core Affidavits in a Standard Queensland Application
| Affidavit | Who Swears It | Essential Contents | When to File |
|---|---|---|---|
| Form 105 — Affidavit of Executor | All executors (jointly or separately) | Identity; death details; confirmation the annexed will is last and unrevoked; inventory of assets & liabilities | Lodged with the application |
| Form 106 — Affidavit of Publication and Search | Executor or solicitor | Dates of online notice; declaration that court probate & caveat indexes were searched | Lodged with the application |
| Affidavit of Due Execution | Usually the solicitor who holds the will or an attesting witness | Explains any irregularity (missing page numbers, staple holes, corrections) and confirms execution met Succession Act 1981 (Qld) s 10 | With initial filing (proactive) or in response to requisition |
| Affidavit of Attesting Witness | One witness to the will | Recounts signing ceremony; proves testator’s signature if validity questioned or witnesses signed out of sequence | Only if will is very old, informal, or disputed |
| Supplementary Affidavits | Executor or expert | Lost-will, lost-codicil, foreign assets schedule, late-found debts | As issues emerge |
Template language – Affidavit of Due Execution for staple holes
“There are two staple holes in the upper-left corner of the original will (Exhibit ‘A’). I confirm the will was received into my custody on 18 March 2025 in this condition. To the best of my knowledge the holes resulted from the deceased fastening the will to a cover letter and were not intended to revoke the document.”
Drafting Essentials and Formatting Tips
| Checkpoint | Practical Tip |
|---|---|
| Use current Supreme Court forms | Download fresh PDFs (Forms 105 & 106) each time. Out-of-date forms top the requisition list. |
| Exhibit rule | Label exhibits “A”, “B”, etc.; endorse each with the exhibit certificate; sign by both deponent and witness. Missing signatures almost guarantees a requisition. |
| Consistent dates | Death date → notice date → affidavit date must flow logically. Never swear Form 105 before the 14-day notice period expires. |
| Plain English | Stick to facts; avoid jargon. “The will is valid”—not “I verily believe the will to be valid.” |
| Correct witnessing | Must be a lawyer, JP or Cdec. All parties sign in each other’s presence. Wet-ink signatures are still required. |
Common Mistakes That Trigger Requisitions — and How to Avoid Them
| Mistake | Delay Created | Prevention Checklist |
|---|---|---|
| Unsigned exhibit certificate on back of will | +2–3 weeks (file returns to queue) | Tick off “Exhibit signed by both?” before lodging. |
| Executor’s address differs from published notice | +2 weeks | Copy-paste address block from notice directly into Form 105. |
| Certified death certificate attached but not certified | Requisition for new exhibit | Verify “certified true copy” stamp and ink signature are present. |
| Asset schedule vague (“family home”) | Court asks for lot/plan & value | Use title search and current agent appraisal. |
| Notice published with wrong court file format | Must re-advertise and restart 14-day wait | Generate notice through the Court portal to auto-populate heading. |
Real-world example: an executor omitted the exhibit stamp on a death certificate. Requisition issued, courier re-file cost $180, and the grant arrived three weeks later than planned—delaying estate property settlement and incurring $1 650 interest on bridging finance.
Practical Workflow for Executors
- Document round-up
- Original will & codicils
- Certified death certificate(s)
- Asset evidence: title searches, bank & share statements
- Draft Forms 105 and asset inventory
- Use exact legal descriptions (e.g., Lot 4 on RP12345, County of Stanley).
- Publish Notice of Intention to Apply
- Via online portal; diarise 14-day wait.
- Prepare Form 106 (Publication & Search)
- Attach screenshot of notice site stamped with date.
- Inspect the will for defects
- If any, draft Affidavit of Due Execution or Attesting Witness now.
- Swear/affirm all affidavits
- Same day if possible to keep dates aligned.
- Final checklist (against Registrar’s Guide)
- Exhibits signed? Dates sequential? Fees correct?
- Lodge application
- Pay filing fee; keep stamped copy for banks.
- Track requisitions
- Respond within 48 hours with supplementary affidavits.
- File supplementary affidavits as new information (overseas assets, lost debt notices) emerges.
A downloadable PDF checklist of the above steps is available from the Court’s “Probate How-To Pack”.
Emotional and Financial Impact of Delays
Probate delays freeze bank accounts, stall property sales and can push grieving families into short-term debt. Executors may suffer reputational damage, and interest on unpaid liabilities chips away at the estate. Accurate affidavits are the fastest antidote.
Role of Solicitors in Streamlining Probate
A probate solicitor:
- prepares requisition-proof affidavits,
- mediates early if beneficiaries disagree,
- coordinates foreign reseals or complex assets, and
- carries professional indemnity insurance if things go wrong.
Their upfront fee is usually eclipsed by the cost of months-long delays and family disputes.
COVID-19 Legacy and Digital Transformation
Since 2020 the Registry accepts e-lodged PDFs. Corrections now return by email, shaving postal days off requisition cycles. E-lodgement also permits electronic payment of filing fees, cutting bank-cheque delays.
Frequently Asked Questions
What if the original will is lost?
File an Affidavit of Lost Will detailing exhaustive search efforts and attach a photocopy or draft. The Court may admit the copy under Succession Act s 18.
Can I attach a digital death certificate only?
No. The Court still requires a certified paper copy. A digital scan may be annexed as an additional exhibit.
How do overseas assets appear in the affidavit?
List each asset (currency, value, location) in the inventory. If further detail arises, lodge a supplementary affidavit before distribution.
Do multiple executors need separate affidavits?
Optional. They may swear a single joint affidavit if all can attend together; otherwise identical separate affidavits are acceptable.
Key Take-Aways
- Use current forms, consistent dates and clearly marked exhibits—these three steps prevent most requisitions.
- Address will irregularities upfront with an Affidavit of Due Execution or Attesting Witness.
- Publish the notice early and wait the full 14 days before swearing Form 105.
- Respond to requisitions fast—each delay cycle restarts the Registry queue.
- With meticulous preparation, many executors secure probate within six weeks of lodging.
Sources / Citations
- Supreme Court of Queensland, Probate Forms 105 & 106 (2025 ed.) — Download
- Uniform Civil Procedure Rules 1999 (Qld) rr 598–603 — View
- Succession Act 1981 (Qld) s 10 — Read Act
- Queensland Supreme Court, Probate Registrar’s Guide (2025) — requisition trends & form samples
- Re Thompson [2023] QSC 72 — affidavit evidence for torn-corner will