Lost Original Will: How to Probate a Copy in Ontario

You have a death in the family, and you expected to find the original will in a drawer, a safe or a lawyer's office. It is not there. Maybe you only have a photocopy, a scan or a draft. It is a stressful moment, and many families assume that without the original, the will no longer counts.

That is not necessarily true, but it does make things harder. This article explains why the original matters in Ontario probate, why a missing will raises questions, what kind of evidence families usually try to gather, and what the application process looks like. The details depend on your facts, so use this as a guide for a conversation with a lawyer.

Why the original will matters

When someone applies for probate in Ontario, the application is filed with the Superior Court in the county where the deceased lived. The process includes submitting the original will and any codicil. A codicil is a document that changes or adds to a will.

That requirement is why a lost original is a real problem. The court is being asked to confirm a document, and it expects to see the signed version. A photocopy does not show the signatures in the same way, and it does not answer the question of what happened to the original.

• A copy shows what the will said, but not whether it was still in force at death.
• If the original cannot be found, whether the will still stands depends on the facts, and a lawyer can confirm how it applies to your situation.
• What a court will accept in place of a missing original depends on the facts, so it is worth confirming with a lawyer.
• Different family members may have different views, which can lead to a dispute.

The question of revocation

Revocation means cancelling a will. When the original cannot be found after a death, a natural question is whether the person cancelled it themselves.

How a missing original is treated depends on the facts, including where the will was kept, who had access to it, and anything the person said about changing it. A lawyer can confirm how this applies to your situation.

Because this is a question of evidence, the people who stand to gain or lose from the copy will care a great deal about the answer. That is one reason these matters sometimes become contested.

Evidence families commonly gather

There is no single list that guarantees success, but the following kinds of material are what a lawyer will usually ask about. Gather what you can before your first meeting.

• The best copy of the will you can find, and who made it and when
• The name of the lawyer or firm that drafted it, and whether they kept a file or a copy
• Where the original was last known to be kept, and who knew about it
• A list of everyone who had keys or access to the home, safe or deposit box
• Notes of any conversations where the person talked about their will or their wishes
• Details of any move, renovation, flood, fire or clean-out that might explain a loss
• Any later drafts, emails or letters that suggest the person wanted to change the will
• The names and contact details of the witnesses to the will, if known

Write down where you searched and when, and keep any replies from lawyers, banks or storage providers. A clear record of your search can matter later.

What the application process looks like

The standard application for probate uses Form 74A, an affidavit of service on Form 74B or 74B.1, a draft certificate on Form 74C, and for a will, an affidavit on Form 74D, 74E or 74F. The application must be sent to everyone entitled to a share before it is filed. The estate administration tax is paid by cheque payable to the Minister of Finance. Processing is typically 15 business days once the file is in order.

With a lost original, the usual paperwork is only the starting point. How the court should be told about the missing document, and what supporting evidence is needed, is something a lawyer can confirm for your case. Do not assume you can simply file the copy in place of the original.

Costs, small estates and the tax return

Estates valued at $50,000 or less pay no estate administration tax, and for estates over $50,000 the tax is $15 for every $1,000, or part of $1,000, of estate value. The value is rounded up to the nearest thousand. An Estate Information Return is still required, even for estates of $50,000 or less.

For smaller estates, there is a separate small estate certificate for estates valued at $150,000 or less, using Form 74.1A. The signed application must be sent to entitled beneficiaries at least 30 days before filing. Whether that route suits an estate with a missing will is a question for a lawyer, because the same concerns about the original apply.

The Estate Information Return must be filed with the Ministry of Finance within 180 calendar days after the certificate is issued, even if the value is $0.

What to do next

• Search the home, safe deposit boxes, files and digital records thoroughly, and note each place.
• Contact the lawyer, notary or bank that may have drafted or stored the will.
• Do not throw out any paper that could be relevant, even a draft.
• Locate the best copy of the will and any known codicil.
• Make a list of everyone who may be entitled to a share, including under an earlier will.
• Speak with an estate lawyer before you file anything or tell relatives what you think the outcome will be.

Acting early helps. The longer a search goes undocumented, the harder it is to explain what happened to the original.

Frequently asked questions