When dealing with estate matters, the condition of a Will can be more important than many people realise. Whether you’re preparing your own Will or administering someone else’s estate, any physical damage to the Will—such as staple holes, tears, water damage, or missing pages—can cause significant legal complications. So, can a damaged Will still be valid in Queensland? The short answer is: yes, but only under certain circumstances.
Why a Damaged Will Raises Red Flags
When applying for probate in Queensland, the Supreme Court usually requires the original, signed Will. But if that Will is damaged or compromised—whether by stains, water, accidental tearing, or even staple removal—the Court may need additional evidence to ensure the document still reflects the testator’s true intentions.
Even something as simple as removing staples or paperclips from a Will can cause suspicion. Courts look for signs that a Will may have been tampered with or revoked. Indentations, staple holes without staples, or even rust marks left by clips might be taken as evidence that something was removed or altered. This could delay probate or, in contested cases, lead to costly litigation.
What the Law Says About Damaged or Lost Wills
Under the Succession Act 1981 (Qld), the Supreme Court has the power to grant probate of a damaged or even lost Will—provided there is enough evidence to prove:
- The Will existed and was validly executed;
- The testator did not intend to revoke it;
- The terms of the Will can be proven clearly.
This often requires one or more affidavits from people who saw the Will, such as the drafting solicitor or witnesses. In many cases, an Affidavit of Plight, Condition and Finding is used to explain how the damage occurred and why it does not indicate revocation.
Section 18 – Informal Wills
Section 18 of the Succession Act allows the Court to accept informal documents—such as a typed draft, unsigned copy, or even handwritten notes—if there is strong evidence they were intended to operate as the final Will. This provision is especially helpful when an original Will is missing or damaged beyond recognition.
Real-Life Example: The Webster Case
In one notable Queensland case, a document titled “Instructions for Will” had been executed properly and was torn in half during a break-in at the accountant’s office where it was stored. The accountant (also the intended executor) re-stapled and taped the document, then stored it safely. Initially, the Public Trustee incorrectly advised that the Will was invalid due to the damage. However, the Supreme Court later ruled that the Will was valid, as the damage was not caused by the testator and there was no intent to revoke it.
This case demonstrates the importance of proper legal advice and the potential for a damaged Will to be accepted—if the right evidence is presented.
Executor’s Duties When a Will Is Damaged
If you’re the executor of a damaged Will, don’t attempt to repair or re-staple it. Doing so can make things worse. Instead:
- Leave the Will as you found it;
- Consult a solicitor immediately;
- Collect evidence—including copies of the Will, notes, and witness statements;
- Prepare the necessary affidavits to explain the damage and confirm the testator’s intent.
Failing to handle this correctly can delay the estate administration process and expose you to legal risks.
Will a Copy of the Will Suffice?
If the original is missing or irreparably damaged, the Court may accept a copy—such as a scanned PDF, a solicitor’s file copy, or a typed draft—if the circumstances strongly suggest the testator did not intend to revoke the original. Affidavits from the solicitor who drafted the Will, witnesses, or close family members can support the application.
However, if there is any evidence that the deceased intentionally destroyed the Will (for example, tearing it themselves), the Court may presume that they intended to revoke it—and the estate may be distributed according to intestacy laws.
Key Takeaways
- A damaged Will can still be valid, depending on how and why it was damaged.
- Minor physical defects (like staple holes or tears) must be explained in Court through affidavits.
- Queensland’s Succession Act allows for probate of lost or informal Wills under specific circumstances.
- Executors should seek legal advice before taking any action with a damaged Will.
- Evidence matters: The more documentation and witness statements you can provide, the stronger your case for probate.
Need Help?
At NB Property Law, we understand how stressful it can be when a Will is lost, damaged, or in question. We’re here to take that burden off your shoulders. Our experienced team will carefully assess your situation, explain your options in plain language, and prepare all the legal documents you need. We’ll guide you through the probate process step-by-step, making sure your loved one’s wishes are respected and your responsibilities are fully supported.
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