Probating a Copy of a Lost Will in Ontario

Discovering that a loved one's signed will is nowhere to be found is stressful enough without also learning that Ontario law starts from an unfavourable assumption: if the original can't be located, the law generally presumes the person destroyed it themselves, on purpose, meaning to cancel it. That presumption is not the end of the story, but it puts the family searching for the will in the position of having to push back against it.

This article explains where that presumption comes from, what kind of evidence can overcome it, and what happens if it can't be overcome.

Why the Law Presumes a Missing Will Was Revoked

Ontario law lets a person cancel their own will simply by destroying it with the intention of revoking it — no witnesses or court filing required for that act. Because of that, when a will was last known to be in the testator's own possession or control and can't be found after death, the law's starting assumption is that the testator destroyed it themselves, deliberately, to revoke it.

This presumption exists for a sensible reason: it protects a person's ability to quietly cancel an old will without leaving a paper trail explaining why. But it creates a real practical problem when the will's disappearance was accidental, or someone else was responsible for it.

When the Presumption Applies — and When It Doesn't

The presumption generally only comes into play where the original will was last known to be with the testator, or somewhere clearly within their control. If the will was last known to be held elsewhere — for example, at a law firm, or in a safety deposit box someone else had access to — the family may be dealing with a straightforward lost-document problem rather than a legal presumption to overcome, though the specifics still need to be sorted out with evidence.

What Can Rebut the Presumption

Because the presumption is rebuttable, not absolute, evidence can be brought forward to convince the court that the will was lost, misplaced, or destroyed by someone other than the testator — not deliberately revoked. Depending on the circumstances, useful evidence can include:

• A copy or draft of the will, ideally from the lawyer or drafter who prepared it
• Evidence about the testator's statements or intentions around the time in question, from family, friends, or the drafting lawyer
• Evidence explaining a specific event that would account for the loss, such as a house fire, flood, move, or the actions of a third party
• Evidence about the testator's general habits with important paperwork
• Evidence about the testator's relationship with the beneficiaries named in the missing will, where relevant to whether they would likely have wanted to change it

No single piece of evidence automatically succeeds or fails — the court weighs everything together to decide what is more likely: deliberate revocation, or an innocent loss.

The Process for Probating a Copy

If the family believes they can rebut the presumption, the estate trustee applies to the Superior Court of Justice, generally through a more involved court process than a routine probate application, because the court is being asked to accept a copy in place of a document it would normally require in original form. Expect this route to take meaningfully longer and involve more legal work than probating an original will, since the court needs to be satisfied on the evidence before it will proceed.

What the applicant typically needs to show

If the Presumption Can't Be Overcome

If the evidence isn't strong enough, the court will treat the missing will as revoked. That means the estate is distributed as though no will exists at all — under Ontario's intestacy rules, or under an earlier valid will if one can be found — rather than according to the terms of the copy. This is why acting quickly, gathering evidence while memories and documents are still fresh, matters so much in these cases.

Frequently asked questions