Probate of a Will With Missing Pages or Removed Staples

You open the envelope and the will does not look right. The pages may not be all there, the staple may be gone, or there are holes where a staple used to be. Pages may be loose and out of order. Families often worry that the will is now worthless or that they could be accused of tampering.

This article explains what Ontario's probate process generally requires, what the court checks and how to avoid making things worse. Whether a will in this condition can be probated depends on the facts, and a lawyer can confirm.

Why the physical condition of the will matters

A probate application asks the court to rely on the deceased's original will. A missing page or removed staple raises a fair question: was something taken out, swapped in or lost?

There may be an innocent explanation, such as a staple removed to photocopy the pages. How best to explain it depends on the facts, so it is worth confirming with a lawyer.

What Ontario's process requires

The application package requires the deceased's original will and any codicil. The original will must be attached as an exhibit to an affidavit of execution, an affidavit of condition or another permitted affidavit. Form 74E, the Affidavit of Condition of Will or Codicil, is used if the will was altered or marked in some way.

Whether a removed staple or missing page fits within that form, or needs a fuller explanation in a separate sworn statement, is a question for a lawyer. Do not assume the form alone covers it.

What can slow the application or lead to refusal

Ontario says applications are typically processed within 15 business days, but longer if documents are missing or a judge must decide an issue. Court staff check for other applications, objections and any more recent will. A refusal comes as Form 74O with reasons, and the reason can be a problem in the estate court record search or missing information.

If a beneficiary files an objection on Form 75.1, the applicant must serve Form 75.3 on the objector. A will that appears incomplete is a common reason for a beneficiary to want the court to look more closely.

If there turns out to be no will that can be used, the estate may have to be dealt with differently, and that depends on your situation, so it is worth confirming with a lawyer. The spouse or common-law partner then has first right to apply, followed by a close adult relative such as a child, parent, grandchild, sibling, nephew or niece. In that situation a bond is required.

Who must be told

Before filing, send a copy of the signed application to everyone entitled to a share, by email, mail or courier to their last known address. In a small estate of $150,000 or less, that must happen at least 30 days before filing.

• If a minor has an interest, serve the Office of the Children's Lawyer.
• Serve each minor's parent or guardian, and list all minors and the approximate value and percentage of each share.
• If an adult is incapable and has no fiduciary, serve both the Public Guardian and Trustee and the individual.
• The Public Guardian and Trustee can be served by email at PGT-Legal-Documents@ontario.ca, in person, or by mail at 595 Bay Street, Suite 800, Toronto, Ontario M5G 2M6.

What to do next

• Stop handling the will. Place it in a clean folder or envelope and do not re-staple, clip or reassemble it.
• Photograph the will exactly as found, including any holes, rust marks or loose pages.
• Write down where and when it was found, who found it and who has had access.
• Search for other copies, drafts or a more recent will, including with the lawyer who may have prepared it.
• Gather the death certificate and a list of assets and beneficiaries.
• Book a meeting with a lawyer before swearing any affidavit about the will's condition.

If a certificate is later issued, remember the Estate Information Return is due within 180 calendar days.

Frequently asked questions