Missing or Lost Original Will in Ontario: What Happens

You have found a photocopy of the will, or a lawyer remembers drafting it, but the signed original is nowhere to be found. It is a stressful position, especially when the estate cannot move forward without clarity.

This article explains how families usually approach the problem and what the law says happens if the will cannot be proved. Because the answer turns on evidence, a lawyer should look at your specific facts early.

Start with a thorough search

Before assuming the original is gone, search carefully. Many original wills turn up in unexpected places. Keep a record of where you looked and when, because you may need to explain your search to a court.

• The deceased's home, desk, filing cabinets and any safe
• A safety deposit box (a bank can explain what access it allows)
• The lawyer, notary or accountant who may have prepared or stored it
• Family members, the named estate trustee and friends who may have been given a copy
• Recent moves, storage units and a previous home

What a copy may mean

If the original cannot be found, it is natural to wonder whether a copy can stand in for it. Whether a copy can be relied on depends on the facts, including what happened to the original, so it is worth confirming with a lawyer. Even while that question is open, the probate and intestacy rules described below show what is at stake for the estate.

Because the answer depends on the facts, do not assume a photocopy is enough to deal with the bank or the land registry. Ask a lawyer how to approach it before anyone starts distributing assets.

If the will cannot be proved

If no will is proved, the estate is treated as an intestacy. A married spouse receives a preferential share, which is $350,000 for deaths on or after March 1, 2021, plus part of the remainder. That does not apply if the spouses were separated at the time of death as defined in the Succession Law Reform Act. A common-law partner has no share of an intestate estate, though they may apply to be estate trustee and may be able to apply for dependant support.

This is why a lost will can matter so much: the people who would inherit under the will may differ from the people who inherit under the intestacy rules.

Probate and costs still apply

Whether a court certificate is needed depends on what the deceased owned. If the deceased owned real property that does not pass by survivorship, or assets held by a financial institution, the estate normally has to be probated. An estate worth $150,000 or less can apply for a Small Estate Certificate, which covers only the assets listed in it.

Estate Administration Tax applies to certificates applied for on or after January 1, 2020, with no tax on the first $50,000 and then $15 for every $1,000 (or part) above that. Jointly held assets that pass automatically and registered plans with a beneficiary designation are excluded from the estate's value for this tax.

Roles, deadlines and what to do next

A person named in a will as estate trustee does not have to act. Renunciation is generally available only if the person has not yet been appointed by the court and has not taken steps to administer the estate; after that, stepping aside requires retirement or removal by court order. A person with a financial interest can ask the court to require a named person to accept or refuse the role.

A dependant's support application must be made within six months from the grant of letters probate or administration, although the court may allow a late application for any portion of the estate still undistributed at the date of the application. Once the estate trustee is served with notice of such an application, they must not distribute until it is resolved, unless everyone entitled consents or the court orders otherwise.

• Document your search for the original.
• Collect every copy and note who holds each one.
• Ask the drafting lawyer whether they kept a signed copy or file notes.
• Do not distribute assets or sell property until you have advice.
• Speak to a lawyer about the best way to put the will forward to the court.

Frequently asked questions