Lost or Missing Will in Ontario: How to Prove a Copy

You have opened the drawer, checked the safety deposit box and called the lawyer's office, and the original will is nowhere to be found. All you have is a photocopy or a scan. It is natural to wonder whether the estate is now stuck, or whether the family will be treated as though there was no will at all.

A missing original is a real obstacle, but it is not always the end of the road. This article explains, in general terms, who has to prove what, how others can object, and what to do while you work out where the document went. Every case turns on its own facts, so treat this as a map and not a verdict.

Why a missing original raises questions

When the original of a will cannot be found, the person relying on a copy still has to prove the will. The person putting a will forward has the legal burden of proving due execution, knowledge and approval, and testamentary capacity. How a court views a missing original depends on the facts, so it is worth confirming with a lawyer.

Why the original is missing, and what the evidence shows about it, can matter a great deal. How much evidence is enough depends entirely on the circumstances, and a lawyer can tell you how a court is likely to view yours.

What has to be proved about the will itself

Whether you have the original or a copy, the person putting the will forward has the legal burden of proving three things: that it was properly signed and witnessed, that the person knew and approved of its contents, and that the person had testamentary capacity.

Once proper signing is proved, the law presumes knowledge, approval and capacity, and the people challenging the will must then bring some evidence against it. If they point to suspicious circumstances, the legal burden returns to the person putting the will forward. Undue influence is different: the burden of proving it stays on the challengers.

Testamentary capacity means a sound disposing mind. The person must have understood the nature and effect of the will, recalled the nature and extent of their property, understood what they were giving, remembered the people who might expect to benefit and, where it applies, understood the claims of those being excluded.

• Evidence of how the will was signed, such as the lawyer's file or the witnesses.
• Evidence the person understood what the will said.
• Evidence of where the original was kept and who had access to it.
• Anything the person said or did afterward that shows what they wanted.

Is a copy ever enough?

There is no simple yes or no. Whether a copy can stand in for a missing original depends on the evidence in your situation, so it is worth confirming with a lawyer. What the law does say is that the person relying on the will carries the burden of proving it.

Ontario also allows the Superior Court of Justice to order that an improperly executed document is valid as the deceased's will, if the court is satisfied that it sets out the person's testamentary intentions. How any of this applies to your situation depends on the facts, so it is worth confirming with a lawyer.

When a family member objects

A lost will often leads to disagreement, especially if the copy leaves out someone who expected to inherit. Before a certificate of appointment of estate trustee is issued, anyone who appears to have a financial interest in the estate may object. They file a Notice of Objection (Form 75.1) with the registrar or the Estate Registrar for Ontario, stating the nature of their interest and of the objection.

If the Registrar tells the applicant that a Notice of Objection has been filed, the applicant must send a notice to the objector (Form 75.3) and then file a copy with the court along with an affidavit of service. A person with a financial interest can also file Form 74P to ask to be notified when someone starts a proceeding involving the estate.

Before a court requires a will to be formally proved, the challenger must point to some evidence that, if accepted, would call the will's validity into question. The threshold is minimal. In the Toronto Region, the Estates List of the Superior Court of Justice hears these matters, and Rule 75.06 gives the court considerable discretion to set a process for resolving a contested estate.

What to do next

• Search thoroughly: home, desk, safe, safety deposit box, the drafting lawyer's office, the bank and any relatives who may have held it.
• Write down who last saw the original and when, while memories are fresh.
• Secure the copy and note where it came from.
• Collect the names of the witnesses and anyone who spoke with the person about their wishes.
• Gather medical and other records that speak to the person's understanding at the time.
• Keep careful notes about estate property and get advice before making decisions about it.
• Speak with an Ontario estates lawyer before filing anything, since the evidence you gather now may decide the outcome.

Frequently asked questions