Skip links and keyboard navigation

Troubleshooting guide

Application

You have filed the application too soon i.e. within 14 days of the last advertisement appearing in the newspaper.  
  • Action required: Seek permission from the registrar to remove the documents from the file on the condition that you refile them after the time limit has expired. If they were filed by post, send a letter requesting that the documents be refiled.
The date of the will in your application is incorrect.  
  • Action required: Seek permission from the registrar to amend the application
A known alias of the deceased is not included in the notice and headings.  
  • Action required: If the notice of intention does not include the alias you will need to file a fresh affidavit using Form 104 - Affidavit of publication and service (UCPR). You must:
  • re-advertise
  • re-serve the notice on the Public Trustee
  • call at the registry counter to amend the headings of the filed documents to include the alias

Who can obtain probate?

Who has the right to the grant of probate?

  • Action required: A number of people may believe they have the right to apply for the grant of probate. If you believe you can apply for probate, you must first rule out anybody else claiming a prior right. You can do this by filing an affidavit showing evidence of their:
  • abandoning any claim or interest in the will – called renunciation
  • incapacity
  • death
What if I am the guardian of the deceased’s children?   
  • Action required: Under the succession laws the guardian of the deceased’s children has the first right to apply for grant of probate. This applies even if the deceased died without making a will or hadn’t disposed of all their property through a will (this is called dying intestate). However, the guardian must ensure any grant is for the children’s use and benefit until they are old enough. The guardian must support the application through Form 13 – Consent of litigation guardian (UCPR).

Renunciation - abandoning any claim or interest in the will

What if I want to renounce the will but the renunciation is incorrect?

  • Action required: You need to seek permission from the registrar to amend and re-execute your renunciation, or file a fresh one. You can seek permission from the registrar to remove the documents on the condition that you return them for refiling after they have been amended.

Affidavits

 Everybody swearing to evidence in an affidavit needs to sign each page.  
  • Action required: You need everybody who swears to evidence in an affidavit to sign each page. If they haven’t you may need to file a new affidavit with the appropriate documents as exhibits or re-swear the existing one. You can change the original by using Form 46 – Affidavit (UCPR). To re-swear you must give an oath or make an affirmation in front of court staff before signing the altered affidavit. You can ask permission from the registrar to remove the documents on the condition that you return them for refiling.
The details of the marriage between the deceased and the applicant/executor are missing from the affidavit.  
  • Action required: File a further affidavit with the details required on Form 46 – Affidavit (UCPR).
Executors are not identified or other details are missing from the affidavit.  
  • Action required: File a further affidavit with the details required on Form 46 – Affidavit (UCPR).
 Date or place of death does not match the death certificate or is missing.  
  • Action required: File a further affidavit on Form 46 – Affidavit (UCPR). Refer to the earlier affidavit and fix up any errors by putting the correct details in one or more of the relevant forms:
  • Form 105 – Affidavit for probate (UCPR)
  • Form 106 – Affidavit for letters of administration (UCPR)
  • Form 109 – Affidavit for letters of administration on intestacy (UCPR).
The affidavit does not refer to “the true and original last will of . . . .”  
  • Action required: File a further affidavit to correct the contents of the earlier affidavit using   Form 46 – Affidavit (UCPR).
The deceased leaves an estate in Queensland.  
  • Action required: File a further affidavit stating, if true, that the deceased left an estate in Queensland using Form 46 – Affidavit (UCPR). 
Name of applicant/s in the affidavit is different to the will  
  • Action required: File a further affidavit to correct the contents of the earlier affidavit and state, if true, that they are one and the same using Form 46 – Affidavit (UCPR).
Proof of de facto spouse or same sex partner.  
  • Action required: If the will was made:
  • between 1 May 1998 and 1 April 2003 it is necessary to provide evidence as to whether there is a de facto spouse
  • after 1 April 2003 it is necessary to provide evidence as to whether there is a de facto partner who may be the same sex.
Give the details in a further affidavit using Form 109 – Affidavit of letters of administration on intestacy (UCPR).

Wills

Applying for an order granting probate where only a copy of a will exists or letters of administration with a copy of the will.
  • Action required: File an application in the Supreme Court on Form 9 - Application (UCPR) together with any further supporting affidavit material.
If the date/s on the will are incorrect or inconsistent
  • Action required: File an affidavit by one of the witnesses stating the date that the will was duly executed on (that is, the day it was witnessed) using Form 107 – Affidavit of signing witness in proof of the due execution of a will or codicil (UCPR). A clear photocopy of the original last will must be included with the Affidavit. For your application you will need the original will and two copies of the original will, one of the copies is an exhibit attached to the Affidavit above.

Damage or holes in the will.

  • Action required: If you damage or make holes in the will you will need to explain how this happened on a Form 111 - Affidavit of plight and condition and finding (UCPR). If the damage existed at the time you found the will, or there were any other documents attached, you will need to state that in the affidavit.
Evidence of proper execution of the will.
  • Action required: The last clause of the will, the attestation clause, must make it clear who was present at the signing. File a Form 107 – Affidavit of signing witness (UCPR) from one of the witnesses or somebody present when the will was signed, stating who was present at the signing. If this is not possible say that in the affidavit. The original will must be exhibited with the affidavit.
The will was made by a blind or illiterate person.
  • Action required: File a Form 107 – Affidavit of signing witness (UCPR) by one of the witnesses acknowledging that the maker of the will was blind or illiterate but knew and approved the contents of the will. The original will must be exhibited with the affidavit.

Death certificate

A photocopy of the death certificate is not acceptable.  
  • Action required: File the properly certified copy issued by the Registrar of Births, Deaths and Marriages with a Form 105 – Affidavit for probate (UCPR).
The name of the deceased on the death certificate is different to the one in the will.  
  • Action required: File another Form 105 – Affidavit for probate (UCPR) to correct the contents of the earlier affidavit. You should state that the person referred to in the death certificate is the same as the one in the will.
Cause of death questions the deceased’s capacity to make a will.  
  • Action required: The cause of death stated in the death certificate may raise the question of the testamentary capacity of the deceased at the time of making the will. If so, file a Form 46 – Affidavit (UCPR) completed by a medical practitioner as to the testamentary capacity of the deceased at the time the will was executed.

Publication and service

Serving a copy on the Public Trustee.
  • Action required: Serve a copy of Form 103 – Notice of intention to apply for grant (UCPR) on the Public Trustee. File a Form 104 – Affidavit of publication (UCPR) to that effect and include a copy of the notice.
Notice of intention to apply is in incorrect form.
  • Action required: If your Form 103 – Notice of intention to apply for grant (UCPR) is not in the correct form you will have to:
  • re-advertise
  • re-serve the public trustee
  • file another Form 104 – Affidavit of publication (UCPR).

Date of the will in the Notice of intention is different to the date in the advertisement.

  • Action required: If the dates in the Form 103 – Notice of intention to apply for grant (UCPR) and the advertisement aren’t the same you will have to:
  • re-advertise
  • re-serve the public trustee
  • file another Form 104 – Affidavit of publication (UCPR).
Which local newspaper do I need to advertise in?
  • Action required: If the deceased lived at the address in the will in the two years prior to their death then advertise in a local newspaper covering that address. If the deceased did not live at the address in the will in the two years prior to death, you should advertise in a local newspaper where the deceased lived. Give details and provide a copy of the advertisement in a Form 104 – Affidavit of publication (UCPR).
What if I advertise and then find out the deceased died elsewhere?
  • Action required: If you have already advertised and find out the deceased died at a place not covered by the advertisement, give the details in a Form 104 – Affidavit of publication (UCPR). As outlined above, the advertisement should cover the deceased’s address on the will where they lived for two years prior to their death.
The newspaper is not approved by the Chief Justice of the Supreme Court through a practice direction.  
  • Action required: The notice must be published in a newspaper circulating throughout the State or a newspaper approved for the area of the deceased’s last known address, as outlined in Supreme Court Practice Directions:

    2/2014  - Rule 599(3) Uniform Civil Procedure Rules - Approval of newspapers for publication of notices
    14/2014 - Rule 599(3) Uniform Civil Procedure Rules - Approval of newspapers for publication of notices
    18/2014 - Approval for newspapers for publication of notices
    31/2014 - Rule 599(3) Uniform Civil Procedure Rules - Approval of newspapers for publication of notices 

    The notice must also be published in the Queensland Law Reporter. You can contact the Queensland Law Reporter at the Incorporated Council of Law Reporting by telephoning 07 3236 1855.

Caveats

After a caveat is filed    Action required: After a caveat has been filed, examination of the estate stops until the caveat process is completed. The registry will forward a notice to both the person lodging the caveat and the applicant. If no Form 118 – Notice in support of caveat (UCPR) is filed before the deadline, the registry can re-examine the application. Alternatively you can file a Form 119 - Notice of withdrawal of caveat (UCPR).

Fax or post

Requisitions will be faxed to you if you provide your fax number on the documents filed. The grant will also be posted to you if you enclose a stamped self-addressed envelope large enough for the document. A registered post envelope is recommended.
Last reviewed
9 January 2015
Last updated
5 August 2016

Rate this page

  1. How useful was the information on this page?
 

Close window

Send this page to a friend