Lost or Missing Original Will in Ontario: Proving a Copy

When someone dies and the original will cannot be found, families often panic. A photocopy or scan may exist, but whether it can be relied on depends on your situation, so it is worth confirming with a lawyer. If relatives disagree about what the deceased wanted, the missing original can become the centre of the dispute.

This article explains why the original matters, what must still be proved when you rely on a copy, and what happens if someone objects. The detailed rules on lost wills and on the concern that a missing will was destroyed on purpose are technical, and a lawyer should confirm how they apply to your facts.

Why the original matters

The application for a certificate of appointment of an estate trustee requires the deceased's original will, if there is one.

When the original is missing, the person relying on a copy has more to explain. How a court approaches a missing original depends on the facts, so it is worth confirming with a lawyer. A missing will can raise a concern that the person revoked it. How that concern is addressed is a technical point to take up with a lawyer.

What you still have to prove

A copy does not lower the standard. The party putting a will forward carries the legal burden of proving due execution, knowledge and approval of its contents, and testamentary capacity. In a contested case, proof of execution looks for two witnesses present at the same time who saw the person sign.

Without the original in hand, that often means relying on people: the witnesses, the lawyer or other person who prepared the will, and anyone who saw the document signed or stored. If only one interested person supports the signing and nothing corroborates it, the evidence can be found insufficient.

• Execution: who witnessed the signing, and can they be found.
• Knowledge and approval: evidence the person understood and agreed with the contents.
• Capacity: the person's understanding of the will, the property and the claims on them.
• The copy itself: where it came from, who held it, and whether it matches what others remember.

Gathering evidence about the missing original

Start with the practical questions. Where did the person usually keep important papers? Who had access to the home or safe deposit box in the last years of life? Did anyone move belongings, or did the person move to a new residence? Did they say anything about changing or cancelling the will?

• Search the home, safe deposit boxes, and any storage the person used.
• Ask the lawyer or office that prepared the will whether they kept the original or a file.
• Ask family, friends and advisers when they last saw the original.
• Keep the copy safe and note how it came into your hands.
• Write down everything you recall about the signing and any later comments.
• Do not alter, mark or discard any version of the document.

What happens if someone objects

A beneficiary can file a Notice of Objection (Form 75.1). Court staff notify the applicant, who must send the objector a notice to objector (Form 75.3) and file it with an affidavit of service. In one case, because of an objection, the registrar could not issue probate and an order from a judge was required. Once the objection was withdrawn, the delay ended.

If an objector keeps raising repeated objections that delay administration, an estate trustee can bring a motion to test whether the objector has standing to keep pursuing them. Where parties agree on terms, a consent order giving directions can still be obtained at a 9:30 a.m. scheduling appointment in the Toronto Estates List.

Mandatory mediation under Rule 75.1 applies to specified estate proceedings, and mediation directions normally form part of a Rule 75.06 motion for directions. If a child's interest is affected, the Office of the Children's Lawyer must be served. Procedures can differ by region and may change, so confirm the current steps.

Costs, fees and next steps

Estate litigation follows the ordinary civil costs regime, and costs come out of the estate only where public policy applies, such as giving effect to valid wills of competent testators. Listed court fees include $94.00 for a notice of objection other than to accounts and $232.00 for an application for directions. Fees change, so check the current schedule.

If you are dealing with a missing original, do not wait for a dispute to harden. Speak with an Ontario estates lawyer before applying, so that the evidence is organised and the application addresses the missing original directly. Keep the family informed where possible, because early agreement on what the will said can save time and cost.

Frequently asked questions