Never remove the staples from a will (and other ways an original gets damaged)

Why a staple hole matters so much

A will is proved as a single, complete document. Anything suggesting a page was added or removed after signing goes to whether the document in front of the Court is really the will the deceased made.

Registrars in the Supreme Court of Queensland look closely at the physical condition of the original. A second set of staple holes, an indentation from a paper clip, a rusty pin mark, a torn corner or an obvious impression left by something once attached all point to something having been fixed to the will and later taken off. The Court does not know whether that was a harmless receipt or a codicil, a further page, or an instruction — so it makes the executor prove it.

The same logic applies to a missing page number sequence, a page printed on different paper, or handwriting added after execution.

What the executor has to do if the will is damaged

Under the Uniform Civil Procedure Rules, where an original will shows signs of alteration, attachment or damage, the applicant for probate must file an affidavit of plight and condition. It explains the state of the will, how it has been kept, who has handled it, and what caused each mark.

In practice that usually means:

• An affidavit from the executor about how and where the will was stored and who had access
• An affidavit from the solicitor or witness who was present at signing, if they can still be found
• Evidence about anything that was once attached — a covering letter, a copy, a schedule of assets
• Sometimes a further affidavit from the person who removed the staple, if that can be identified
• Additional legal fees and often several weeks of delay before the grant issues

The worst case: the presumption of revocation

If a page is genuinely missing, or the will is torn, cut or partly destroyed, the Court may presume the deceased destroyed it intending to revoke it. That presumption has to be rebutted with evidence, and if it cannot be, the estate is administered as if there were no will at all — or under an earlier will the deceased had long since replaced.

That outcome can be radically different from what the deceased wanted: a spouse and children sharing on the intestacy formula, a step-child receiving nothing, a chosen executor replaced by whoever applies for letters of administration.

The common ways originals get damaged

Almost all of these happen with good intentions, usually while someone is trying to be organised.

• Removing the staple to photocopy or scan the will — by far the most common cause
• Feeding the original through a document feeder or scanner that dents or tears the corner
• Paper-clipping a death certificate, asset list or covering letter to the front
• Using a bulldog clip, pin, sticky note or tape on the pages
• Punching holes to put the will in a ring binder or lever-arch folder
• Writing on the will — crossing out a beneficiary, adding a note in the margin, initialling a change
• Storing it folded in a damp place, or where insects, mould or sunlight can reach it
• Laminating it, which prevents any forensic examination and is treated as an alteration of the document

How to handle an original will safely

Treat the original as evidence, not as paperwork.

• Leave the staple exactly where it is, even if the will was stapled crookedly
• If you need a copy, photograph the pages flat with a phone or scan on a flatbed with the staple intact
• Keep any covering letter or schedule in the same envelope, not attached to the will
• Store it flat in an envelope in a dry place, or better, in a solicitor's safe custody
• Never write on it, highlight it, or correct a typo yourself — changes after signing are invalid and create a plight and condition problem
• Tell your executor where it is, and put that in writing

If you want to change something in your will

You cannot amend a Queensland will by crossing out a name or writing in a new one. An alteration made after execution has no effect unless it is signed and witnessed with the same formality as the will itself, and an unexplained alteration triggers the same affidavit evidence as a staple hole.

The correct fix is either a codicil, properly executed, or a fresh will. A new will is usually the better answer: it is cheaper than the argument a homemade amendment causes, and it removes any doubt about which document governs.

If the damage has already happened

Do not try to fix it. Do not re-staple through the original holes, do not tape a torn corner, and do not reprint a page. Every attempt at repair makes the evidence harder to explain.

Put the will and anything that was attached to it into an envelope, write down what you remember — who removed the staple, when, and why — and get advice before an application is filed. A contemporaneous note made now is far more persuasive than a recollection given in an affidavit two years later.

If the will-maker is still alive and has capacity, the simplest and cheapest solution is almost always to sign a fresh will. That disposes of the problem entirely.

Where the original should live

We hold original wills in safe custody at no charge, with a written receipt and a register entry so the executor can find the will when it is needed. If another firm, a bank or the Public Trustee holds yours and you would rather it sat with the firm that will act for your executor, we write for its release on your authority — see our page on moving a will to us. Coastside Law can also advise an executor dealing with a will that is already damaged.

Damaged wills in Queensland — common questions