Background
Judith Van Carroll died at Helensvale, Queensland on 8 November 2025, survived by her son David Carroll, whom she had named as sole executor of her will dated 9 January 2008. Her husband, Robert George Carroll, had predeceased her in December 2010. David Carroll applied to the Supreme Court of Queensland for an order directing the Registrar of Probate to grant probate of a copy of the will, as the original could not be located despite searches by the applicant, his sisters, and the solicitors involved.
The application was initially filed on 14 May 2026 under s 18 of the Succession Act 1981 (Qld), a provision that Treston J identified as inapplicable to a copy-will application. The court brought the matter on for mention rather than determining it on the papers, and directed the applicant’s solicitor to the correct legal framework. The solicitor subsequently filed supplementary material, but that material addressed only the search trail for the original document.
The paper trail showed that the will had been held in safe custody by the drafting firm, released at the deceased’s request to GMS Legal and Conveyancing in May 2012, and apparently handed back to the deceased at some point — possibly when she sold her New South Wales property and relocated to Queensland — after which neither firm could produce it.
The Court’s Holding
Treston J dismissed the application. The judge set out the five requirements a court must be satisfied of before granting probate of a lost will: (1) the will existed; (2) it revoked all prior wills; (3) the presumption that an unproduced will was destroyed by the testator with revocatory intent has been rebutted; (4) the terms of the will are established; and (5) due execution is proved. The court was readily satisfied on elements one, two, four, and five from the face of the copy will. The application failed entirely on element three.
Treston J held that the evidence fell short of rebutting the presumption of destruction. Although the evidence established that the original will had been held in safe custody and could no longer be located, it contained nothing about conversations with the deceased concerning her testamentary intentions, whether she had ever expressed an intention to destroy or revoke the will, or whether she had contemplated making a new will. The court had specifically flagged the presumption issue at an earlier mention, yet the supplementary affidavit filed in response failed to address it in any meaningful way — the solicitor had misread the court’s direction as going to a “presumption of rebuttal” rather than the presumption of destruction.
The application was dismissed without prejudice to relisting once proper evidence going to the presumption is adduced. The court directed that its reasons be made available to the applicant’s solicitor to guide the preparation of further material.
Key Takeaways
- An application for probate of a lost will must address all five established requirements; satisfying four of the five is insufficient to obtain a grant.
- The presumption that an unproduced will was destroyed with revocatory intent requires affirmative rebuttal — typically through evidence of the deceased’s expressed intentions, family conversations about the will, or circumstances making accidental loss more probable than deliberate revocation. A bare search trail showing the document cannot be found is not enough.
- Practitioners should carefully distinguish a copy-will application from the distinct statutory mechanism under s 18 of the Succession Act 1981 (Qld), which addresses a different problem; conflating them will cause the application to be filed on the wrong basis.
- When a court draws counsel’s attention to a specific legal issue at a mention, the subsequent affidavit must squarely address that issue; misreading the court’s direction and filing on a tangential point will not cure the deficiency.
Why It Matters
This decision is a practical reminder for succession practitioners that the evidentiary burden in lost-will applications goes well beyond demonstrating that a diligent search was conducted. The presumption of destruction — long-established in Queensland and across Australian jurisdictions — reflects the policy that a testator who retains custody of a will and then cannot produce it is presumed to have revoked it. Rebutting that presumption calls for evidence about the testator’s state of mind and testamentary intentions, which practitioners must actively gather from family members and others close to the deceased, ideally before those recollections fade.
The decision also illustrates the risks of attempting to resolve probate applications on the papers without ensuring the underlying legal framework is correctly identified. Had the applicant’s solicitor sought early guidance from experienced counsel — as the court itself suggested — the misfiling under s 18 and the inadequate evidence on the presumption of destruction might both have been avoided, sparing the estate the delay and cost of a dismissed application and a fresh filing.