Probate of a Copy Will in Queensland: What Happens if the Original is Lost?

Losing the original of a loved one’s Will can be distressing, but it doesn’t always mean the Will is invalid. In Queensland, the Supreme Court can still grant probate of a copy if certain legal requirements are met. A recent decision, Re Smith (deceased) [2025] QSC 257, highlights how the Court approaches these cases and what families can expect.

FACTS OF THE CASE

Mrs Smith made her Will in 2002, leaving her estate to her three children. Years later, the original Will went missing after being transferred between law firms and then to her son. When Mrs Smith passed away, only a copy of her Will could be found. Her son applied to the Supreme Court for probate of the copy, supported by his brother and sister.

Justice Davis granted the application, confirming that the Court will admit a copy Will to probate if the well-established five-stage test from Frizzo v Frizzo [2011] QSC 107 is satisfied.

THE FIVE FACTORS THE COURT CONSIDERS

To obtain probate of a copy Will, the applicant must show that:

1. There was a Will or a document that embodied Mrs Smith’s testamentary intentions.
2. The Will revoked all previous Wills.
3. The presumption of destruction with intent to revoke can be rebutted.
4. There is evidence of the terms of the Will (such as a copy).
5. The Will was properly executed, or Mrs Smith intended it to be her final Will.

REBUTTING THE PRESUMPTION OF DESTRUCTION

In most cases, the main hurdle is rebutting the presumption that the missing Will was destroyed by the testator with the intention to revoke it. While the burden of proof rests with the applicant to show that a Will was not intentionally destroyed, this evidentiary requirement can be met with well drafted and time relevant affidavit evidence.

This presumption can be overcome through clear, credible evidence—for example:

1. Statements from close family members g. “Mum never would have changed her will after dad passed”
2. Friends who were close to the testator at the relevant time g. “she told me one day at lunch that she’d misplaced all of her legal documents”
3. Solicitors who prepared or held the Will g. “The express post parcel containing the will disappeared!”
4. Treating general practitioners g. “by 2024 the deceased was medicated for advanced dementia and Alzheimer’s disease indicating a lack of capacity”

Alternatively, a testator may have lost capacity to revoke their will by the time it was considered lost. Courts are open to evidence from lay people (family and friends of the deceased), as well as professionals such as treating general practitioners or the lawyers who prepared the Will.

HOW WE CAN HELP

At Rostron Carlyle Lawyers, our wills and estates team can assists you with an application for probate of a copy Will in the Supreme Court of Queensland. We help gather and prepare the necessary evidence to satisfy the Court’s requirements and ensure your application runs smoothly.

Many of these applications can be determined without an oral hearing, meaning the matter is decided “on the papers.” This process is more cost-effective and efficient, avoiding the need for a court appearance while still achieving the grant of probate.

If you believe a loved one’s original Will has been lost, but you have a copy, contact our team today. We can guide you through the process of proving the Will, preparing the required affidavits, and obtaining probate so that the estate can be administered according to your loved one’s wishes.

The blog published by Rostron Carlyle is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Rostron Carlyle on any legal queries concerning a specific situation.