What happens if the original will cannot be found after someone dies in Ontario?

If the original will cannot be found after a person dies in Ontario, the estate may still be administered using a copy of the will, but it requires a more complex court process. There is a legal presumption in Ontario that if a will was in the testator's possession and cannot be found after death, it was destroyed by the testator with the intention of revoking it. This presumption can be rebutted, but the burden of proof falls on the person seeking to probate the lost will.

To overcome the presumption, the person applying must provide evidence that the will existed, evidence of what the will said (usually through a photocopy, a draft, or witness testimony from the lawyer who prepared it), and evidence that the will was not deliberately destroyed by the testator. If all of this can be established to the court's satisfaction, the court can grant probate based on the copy.

Practically speaking, lawyers who prepare wills often retain a copy or a draft in their files. If the original will was stored somewhere secure — such as a bank safety deposit box, a lawyer's office, or the court's will deposit system (Ontario has a system for depositing wills with the Superior Court for safekeeping) — it may be found with some searching.

Storing your original will in a safe and known location, and telling your executor where it is, prevents this problem entirely.