Lost or Damaged Wills: Special Probate Procedures in QLD

When a person dies leaving a will in Queensland, their executor normally applies for probate using the original, signed document. But what if that original will is lost, destroyed, or seriously damaged? Does that mean the estate defaults to intestacy, or might a copy still stand?

This article delves into special probate procedures the Supreme Court of Queensland uses to evaluate lost or damaged wills, how the executor can prove the will’s contents and validity, and the potential outcomes for distributing assets despite the missing or compromised document.


Why Lost or Damaged Wills Cause Concern

In an ideal scenario, the original will is safely stored (e.g., a solicitor’s safe custody) until the testator dies. But real life brings fire, floods, misplacements, or accidental destruction:

  • Misfiled in cluttered paperwork, never found,
  • Destroyed by the deceased believing it’s revoked (or inadvertently),
  • Damaged in natural disasters, making sections unreadable.

“A missing will raises questions: Did the deceased revoke it, or is it merely lost? The court must decide if the will stands.”

Without clarity, the executor may be forced to rely on intestacy rules—which might not match the testator’s final wishes.

Relevant Queensland Law

Under Queensland’s Succession Act 1981¹ and court rules, a Grant of Probate for a lost or damaged will is possible if certain criteria are met, typically requiring affidavit evidence from those who saw or held a copy, and robust proof the testator didn’t intentionally revoke the will.


How Wills Get Lost or Damaged

Common Causes

  1. Accidental Misplacement: The deceased stored the will at home, but family can’t locate it.
  2. Destruction by Fire/Flood: Natural disasters or house fires ruin stored documents.
  3. Intentional Revocation: Sometimes the deceased tears or defaces the will as a sign of revocation, but confusion arises if it was done partially or ambiguously.
  4. Moving or Overseas Travel: The will might be left in a different country or lost during relocations.

“Countless times, a relative insists the deceased had a will—but rummaging through boxes reveals only a photocopy. Without court acceptance, that copy lacks direct authority.”

Partial Damage vs. Fully Missing

  • Partially Damaged: Some text remains legible, or certain pages are intact while others are ruined.
  • Fully Missing: Only a copy or references exist, but the original is nowhere to be found.

Each scenario influences the strength of the executor’s evidence in proving the will’s contents and the testator’s final intention.


Proving a Lost or Damaged Will’s Validity

Court Requirements

The Queensland Supreme Court typically requires affidavit evidence showing²:

  1. Existence and Terms: A reliable copy or record of the will’s contents.
  2. Continuing Intent: The deceased did not revoke or destroy it intending to revoke.
  3. Testamentary Capacity: At the time of execution, the testator understood what they were doing.
  4. Execution: Proper witnessing or reasons to excuse a minor defect.

“Substantial affidavit proof is needed—like statements from the will’s witnesses or the solicitor who drafted it, describing exactly how and when it was signed.”

Role of s 18 (Informal Wills) of the Succession Act

Section 18 of the *Succession Act 1981 (Qld)*¹ allows the court to dispense with strict compliance if there’s enough evidence the document (or copy) reflects the testator’s final testamentary intent. This might involve typed drafts, partial documents, or a scanned version if the court is convinced it truly represents their will.

(Note: The burden of proof is higher if no attesting witnesses can confirm the original was validly signed or the testator’s final instructions remain unclear.)


Table: Common Proof Elements for a Lost Will

Proof ElementEvidence / Explanation
Copy of WillA photocopy, scan, or draft that matches the original
Witness AffidavitsStatements from those who saw the will’s signing or last saw it
Solicitor RecordsIf a lawyer drafted/stored it, file notes can confirm content
Testator’s StatementsVerbal declarations or emails indicating they never revoked it
Contextual EvidenceE.g., same format as earlier wills, consistent with known estate plans

“The more consistent and detailed the evidence, the likelier the court is to grant probate of the lost or damaged will.”


Potential Outcomes in Lost/Damaged Will Cases

  1. Probate of the Copy: If the court believes the copy truly represents the final will, it grants probate of that copy.
  2. Partial Probate: If only certain pages are legible, or a portion can’t be proven, the court might probate the valid sections if enough clarity remains.
  3. Intestacy: If the court concludes the will was likely revoked or insufficiently proven, distribution follows intestacy rules.
  4. Family Provision: Even if a copy is accepted, family members can still contest for inadequate provision if they’re eligible.

“Courts aim to respect the testator’s probable wishes, not to force intestacy if reliable evidence shows a valid final will.”


Executor’s Steps If the Will Is Lost or Damaged

Gather All Evidence

  • Locate any partial or full copy, draft, or even notes referencing the will’s contents.
  • Speak to witnesses (like drafting solicitors, friends) for affidavits on the will’s creation and the testator’s statements.
  • Check if the testator mentioned revoking or rewriting the will.

File a Detailed Affidavit

Upon applying for probate of a lost/damaged will, the executor includes an affidavit detailing:

  • How they searched for the original,
  • Why they believe the copy is authentic,
  • Any reasons the will might appear revoked or suspiciously damaged, and
  • Confirming the testator’s mental capacity at execution.

“Courts rely heavily on comprehensive affidavits that piece together the story of the missing or battered document—lack of detail leads to rejection or further queries.”

Possible Court Hearing

If the matter is uncontested and the evidence is strong, the court may grant probate without a formal hearing. But if relatives or potential beneficiaries dispute the will’s authenticity or claim the testator intended revocation, a hearing could ensue.


Practical Examples

  1. House Fire Scenario: The deceased stored the original will at home, but a fire destroyed it. A neighbour keeps a scanned PDF. The solicitor who prepared it testifies about the testator’s signing. The court might accept the scanned PDF for probate, provided there’s no sign of intentional revocation.
  2. Misplaced Will: The testator told relatives repeatedly they’d left the will at home, but it never surfaces. A typed copy or earlier draft is found among personal papers. Affidavits from friends and the drafting solicitor confirm it was the final version. The court could grant probate on that basis.

Common Pitfalls and Disputes

  1. Revocation Doubts: The court will reject the copy if evidence suggests the testator deliberately destroyed the original to revoke it.
  2. Conflicting Copies: If multiple versions are found, determining which is final can be tricky.
  3. Insufficient Proof: If no reliable copy or witness statements exist, the estate may revert to intestacy.
  4. Intentional Damage: For partial damage, the court may interpret rips, scribbles, or missing pages as the testator’s attempt to modify or revoke those sections.

“Any sign of torn or defaced will pages raises the question: was it an accident or the testator’s deliberate act to cancel?”


Frequently Asked Questions (FAQ)

Q1: Does finding only a typed draft or computer file suffice?
A: Possibly, under the court’s informal will or lost will procedures. You must prove it was the deceased’s final intention and they had capacity¹.

Q2: If the will was partially burnt, can the court still admit the undamaged sections to probate?
A: Yes, if the residue is coherent, and evidence supports that the testator didn’t intend to revoke it. The court might reconstruct or interpret the missing parts.

Q3: Do all beneficiaries need to consent to probate of a lost or damaged will?
A: Not necessarily. Any beneficiary or even potential heir can object. However, if everyone consents and strong evidence exists, it smooths the court’s decision.

Q4: Will it take longer to get probate if the will is lost?
A: Typically, yes. You must gather more affidavits or proof. The Supreme Court may request additional documentation or even hold a hearing if doubts linger.

Q5: Can an executor unilaterally decide to treat the estate as intestate?
A: The executor can do so if there’s no copy or insufficient proof. But if a partial copy or reliable evidence surfaces, the executor should attempt to probate that will or risk negligence claims.


Lost or damaged wills in Queensland don’t always result in intestacy. The Supreme Court can still grant probate if there’s convincing proof of the will’s content and the testator’s intention to keep it operative. Executors facing a missing or partially destroyed document should:

  1. Conduct a thorough search for copies or references,
  2. Collect affidavits from witnesses or solicitors attesting to authenticity,
  3. Lodge a special probate application under the relevant sections of the Succession Act 1981 (Qld),
  4. Address any conflicts or allegations of revocation carefully.

With detailed evidence and a clear demonstration the will remains the testator’s final expression, the courts often validate the copy or partially damaged version—ensuring the deceased’s genuine wishes guide estate distribution, even when the original will is gone.

Key Takeaways:

  • Lost or Damaged Will: The court can grant probate if the will is proven genuine and unrevoked.
  • Proof: Copies, witness statements, solicitor file notes, or informal records showing final intention.
  • Section 18 (Informal Wills): Allows dispensing with formal compliance if the court is satisfied about authenticity.
  • Potential Outcomes: Probate of the copy, partial probate, or intestacy if insufficient evidence.
  • Executor Action: File affidavits explaining the missing/damaged will scenario, ensure no sign of intentional revocation.
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Last updated: 29 January 2025

Disclaimer: This information is designed for general information. It does not constitute legal advice. We strongly recommend you seek legal advice in regards to your specific situation. For expert advice call 1300 580 413 or contact us to arrange free initial advice.

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