What Happens If There Is a Problem with a Will When Applying for Probate?
When someone passes away, an executor may expect the probate process to be relatively straightforward. But what happens if the original Will cannot be found, the document has been damaged, or there is an issue with how it was signed?
Problems with a Will do not necessarily mean probate is impossible, but they can make the process more complicated. Understanding some of the most common issues can help executors identify when additional evidence or legal assistance may be required.
Do You Need the Original Will for Probate?
For a standard probate application in Queensland, the original signed Will is generally very important.
This is why knowing where your original Will is stored matters. Executors sometimes discover that a Will was prepared many years ago by a solicitor who has since closed their practice, leaving the family unsure where the original document is located.
If only a copy can be found, it may still be possible to make an application, but additional evidence and court procedures may be required.
Keeping the original Will securely stored and ensuring executors know where it is located can prevent significant difficulties later.
What Happens If a Will Is Damaged?
Even seemingly minor damage can raise questions during probate.
Common examples include:
a Will being unstapled and restapled;
holes, tears or other physical damage;
handwritten notes or markings;
or apparent alterations after the Will was signed.
These issues can cause concern because the court needs to be satisfied that the document being presented is the deceased person’s original and final Will.
In some circumstances, an executor may need to provide an affidavit explaining how the damage occurred. For example, someone may have unstapled the document simply to scan it without realising that doing so could later require an explanation.
What If the Will Was Not Properly Signed or Witnessed?
A valid Will generally needs to comply with particular signing and witnessing requirements.
Problems may arise where:
the document was not properly dated;
signatures are missing;
the required witnessing process was not followed;
or the wording around execution is incomplete.
These issues do not always make the situation hopeless. Additional evidence from witnesses or other people involved in preparing the Will may sometimes help establish what occurred.
However, the probate application will usually be more complex than a standard application.
What Happens If the Executor Cannot Act?
Another common issue arises when the executor named in the Will is unavailable.
An executor may have:
died before the Will-maker;
decided they do not want to act;
formally renounced their appointment;
or become unable to act because of capacity or other circumstances.
If the Will names an alternate executor, that person may be able to step into the role. Evidence may need to be provided explaining why the first executor cannot act.
Where there is no available executor, an eligible person may instead need to apply for letters of administration with the Will. This allows someone who was not originally appointed as executor to administer the estate according to the terms of the Will.
How Can You Avoid Problems With Probate?
One of the simplest ways to reduce future complications is to have your Will professionally prepared and properly stored.
A solicitor can help ensure that:
the document is executed correctly;
appropriate executors and alternates are appointed;
different future scenarios are considered;
and the original document is stored securely.
It is also important to review your Will periodically, particularly if an executor dies, relationships change, or your family and financial circumstances evolve.
Frequently Asked Questions
Can you get probate with a copy of a Will?
Potentially, yes. However, where the original Will cannot be located, the application is usually more complex and additional evidence may be required before the court will accept a copy.
What happens if a Will has been damaged or unstapled?
Damage such as tears, holes, markings, or evidence that the Will has been unstapled and restapled may need to be explained. An affidavit may be required to outline how the damage occurred and confirm that the document has not been improperly altered.
What happens if a Will was not properly witnessed?
If there is a problem with witnessing or execution, probate may still be possible, but further evidence may be needed. This could include an affidavit from a witness or another person involved in the signing of the Will.
What happens if the executor named in the Will has died?
If the Will appoints an alternate executor, that person may be able to act. If there is no available executor, an eligible person may need to apply for letters of administration with the Will.
Can an executor refuse to act?
Yes. An executor can formally renounce their role if they do not wish to administer the estate. The next available executor, or another eligible person, may then need to step in.
Do handwritten notes on a Will cause problems?
They can. Handwritten notes, crossings-out, or other markings may raise questions about whether the Will was altered after it was signed. These issues should be reviewed before a probate application is lodged.
How can I avoid problems with probate?
Having your Will professionally prepared, correctly signed and witnessed, securely stored, and regularly reviewed can significantly reduce the risk of avoidable probate complications.
Final Thoughts
Problems with a Will do not automatically prevent probate, but they can create additional evidence requirements, delays and expense.
Issues involving missing originals, damaged documents, execution problems or unavailable executors should be addressed carefully before an application is made.
If you are dealing with a Will that may have problems or are unsure how an issue could affect probate, contact Lidia Vicca or book a free consultation through our website to discuss the circumstances and determine the most appropriate way forward.