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missing will

Applications to Prove a Copy of the Will

An application for a certificate of appointment of an estate trustee with a Will (i.e. a probate application) ought to be accompanied by the Original Will. What happens if the original of a Will cannot be found after the death of the Testator? If the Will was last in the Testator’s possession, it is presumed that the Testator revoked the Will by deliberately destroying it, unless a person with a financial interest in the Estate proves otherwise.1 Any person with a financial interest in the Estate, who wishes to propound the lost Will, must bring an Application to prove the missing Will. The Application must be supported by evidence that the Will was duly executed, its location can be traced until at least the Testator’s date of death and the Testator did not deliberately destroy the Will. The person propounding the Will must also prove the contents of the Will.2

I. Was the Will Duly Executed?

To be admitted to probate, a Will must be properly executed. The Will of a civilian is considered valid if: (i) it is in writing, (ii) it is signed by the Testator or by someone in the presence and at the direction of the Testator, (iii) the Testator signs or affirms their signature on the Will in the (physical or virtual) presence of two witnesses; (iv) two or more witnesses sign the Will in the (physical or virtual) presence of the Testator.3 A handwritten Will that is wholly the Testator’s handwriting and contains their signature may be considered a duly executed holograph Will, even if no person witnessed the Testator’s signature.4

Further, an improperly executed Will of a Testator who passed away on or after January 1, 2022 may be validated by the Court, based on evidence that it represents the final wishes of the Testator.5

II.Tracing the Will

The chain of possession of the Will is an important factor in determining whether the presumption that the Testator revoked the missing Will applies. If the Will was lost after the Testator’s death or if the Will was last in the possession of someone other than the Testator, the presumption that the Testator deliberately destroyed the Will does not apply. Further, the presumption does not apply unless it can be shown that the Will could not be found although full enquiries to locate the lost Will were made.6

Where the presumption does not apply, the person who claims that the Will was destroyed needs to prove, through evidence, that the testator deliberately destroyed the Will with an intention to destroy it.7

III. Did the Testator Deliberately Destroy the Will?

A Will is revoked in writing, by a new Will or if the Testator, or someone directed by the Testator destroyed the Will by “burning, tearing or otherwise destroying” with the intention of revoking the Will.8 The presumption that the Testator revoked the Will can be rebutted by showing, on the balance of probabilities (i.e. that it is more likely than not), that the most “likely and reasonable explanation” for the lost Will9 is that:

  1. the Will  was destroyed after the Testator’s death; or,
  2. the Testator did not intentionally destroy the Will. This can be established through evidence that the Will was lost, stolen, destroyed in an accident (such as a fire), misplaced or that the Testator did not have the capacity to understand the effect of destroying the Will.

While deciding whether the Testator intentionally destroyed the Will, the Court may consider evidence of whether the Deceased was an organized person, whether they placed an importance on having a Will and whether they knew the impact of destroying a Will and whether they claimed that they had a Will and whether the Will is consistent with statements of gifts by the Testator, during their lifetime.10

IV. Proving the Contents of the Will

In Ontario, the contents of a Will need to be proved beyond reasonable doubt.11 To prove the contents of a Will, the Court Will consider documentary and oral evidence and determine whether the copy of the Will produced reflects the Testator’s wishes. The court may consider the evidence of independent witnesses, the Testator’s instructions to their solicitor and statements of the Testator.12

V. Conclusion

A lost Will cannot automatically be admitted into probate. A diligent search for the lost Will should be carried out and the Will should have been in the possession of the Testator before the presumption of destruction applies. A person propounding a lost Will must prove the elements above through affidavit evidence, if all other persons with financial interest in the Estate consent to the lost Will being proved. If there is no unanimous consent from those with financial interest the lost will is to be proved in a manner directed by the Court.13 Where there is no consensus about whether the lost Will is valid and was in existence on the date of the Testator’s death, the evidence of the Applicant about the validity of the Will shall be corroborated by the evidence of others.14

Courts have considered evidence from the drafting solicitors file, writings of the Testator and the evidence of uninterested parties.


  1.   O’Donovan v. O’Donovan,  (2009) O.J. No. 5020 (S.C.)
  2.   Sorkos v. Cowderoy, 2006 ONCA 31722
  3.   Sections 3 and 4 of the Succession Law Reform Act, R.S.O. 1990 c. S.26 (“SLRA”)
  4.   Section 6 of the SLRA; David Wagner, What is a Holograph Will?
  5.   Section 21.1 of the SLRA; Grattan v. Grattan (unreported)
  6.   Ian Hull and Suzana Popovic Montag, Macdonnel, Sheard and Hull on Probate Practice. 5th Edition  at page 485
  7.   O’Donovan v. O’Donovan,  (2009) O.J. No. 5020 (S.C.)
  8.   Section 15 of the SLRA
  9.   Salvation Army in Canada v. Coles-Lecuyer, 2012 ONSC 3124
  10.   Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253; for a summary of this case, see Charles Wagner, et. al, Lost Wills and  Presumption of Revocation
  11.   Sorkos v. Cowderoy, 2006 ONCA 31722
  12.   Sorkos v. Cowderoy, 2006 ONCA 31722; Lefebvre v. Major, 1930 SCC 4
  13.    R 75.02 of the Rules of Civil Procedure
  14.   Section 13 of the Evidence Act, R.S.O. 1990, c. E.23
Mukta Batra - Toronto Litigation Lawyer

The author of this blog is Mukta Batra. Mukta is an associate lawyer at Wagner Sidlofsky LLP. This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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