A Lost Will in Ontario: The Presumption of Revocation and How to Rebut It

A family member dies, and everyone remembers them saying they had a will — but when the time comes to look, the signed original is nowhere to be found. This situation triggers a specific legal presumption in Ontario, one that can determine whether an estate is distributed the way the deceased actually wanted, or as if they had no will at all.

The Presumption Explained

Where a will was last known to be in the testator's own possession or control, and it cannot be found after their death, Ontario law generally applies a presumption that the testator destroyed it with the intention of revoking it. In other words, the law's starting assumption is that the missing will was deliberately destroyed by the person who made it — not simply misplaced.

This presumption applies even though, in reality, wills are lost for all kinds of reasons that have nothing to do with a testator's intent: a move, a house fire, a lawyer's office closing, a family member tidying up after death.

Why the Law Presumes This

The presumption exists because Ontario's Succession Law Reform Act allows a will to be revoked by destruction carried out with the intention of revoking it. Since a testator who deliberately destroys their will typically doesn't leave a written record explaining why, the law fills that evidentiary gap with a rebuttable presumption rather than requiring impossible proof of a private, undocumented act.

Importantly, the presumption is rebuttable — it is a starting point, not a final answer.

What Can Help Rebut the Presumption

• [ ] A copy of the signed will — from the drafting lawyer's file, a photocopy kept by the testator, or a copy given to an executor or beneficiary.
• [ ] Evidence about who had access to the original document and the circumstances in which it went missing (for example, it was last seen at a location later damaged by fire or flood, or was in the possession of someone other than the testator).
• [ ] Statements the testator made, close to the time of death, confirming the will still reflected their wishes.
• [ ] Evidence that the testator's actual conduct and relationships remained consistent with what the missing will provided.
• [ ] Testimony from the lawyer or witnesses involved in preparing and signing the original will.

The strength of this evidence matters enormously — courts weigh it carefully because the presumption exists precisely to prevent unproven claims about a lost document's terms.

What Happens if the Presumption Isn't Rebutted

If the presumption of revocation is not successfully rebutted, the law treats the testator as if that will had been revoked. Depending on the situation, this can mean an earlier, still-valid will takes effect instead, or — if no earlier will exists — the estate is distributed under Ontario's intestacy rules, as though no will had ever been made.

Steps to Take If a Will Can't Be Found

1. Search thoroughly before assuming the will is truly lost — check safety deposit boxes, the drafting lawyer's office, and any estate planning binder.
2. Contact the lawyer who drafted the will; law firms often retain a copy or at least records confirming the will was made and its general terms.
3. Preserve any copy you do find, along with information about who has held it and when it was last seen.
4. Document the deceased's more recent statements about their wishes, from anyone who can credibly speak to them.
5. Get legal advice promptly — rebutting this presumption is a fact-intensive process, and evidence can become harder to gather as time passes.

Frequently asked questions