Will Witnesses Cannot Be Found or Have Died: Proving the Will in Ontario

You have found the will and you are named as executor, but the people who watched the deceased sign it have died, moved away or cannot be traced. The usual paperwork assumes one of them can swear an affidavit, so it is natural to worry that the will cannot be proved.

This article explains why the witnesses matter, which parts of a probate application stay the same, how the court handles an application that raises a question, and what you can do to prepare. It is general information about Ontario, not a substitute for advice on your own file.

Why the witnesses matter at probate

A probate application in the Superior Court of Justice includes the deceased's original will and any codicil, proof of death, and a set of completed forms. Among those forms is the affidavit of execution, Form 74D, which is the document that normally speaks to how the will was signed and witnessed.

The original will must be attached as an exhibit to an affidavit of execution, an affidavit of condition or another permitted affidavit. In plain terms, the court wants sworn evidence connected to the actual document, not just a copy and a family member's recollection.

What changes when a witness is gone

If the witnesses cannot swear the affidavit, the application is no longer routine. Rule 74.04 lists the required forms for each situation, and which of those situations fits your will depends on the facts: who the witnesses were, whether anyone else saw the signing, how the will was prepared and what can be shown about it.

We cannot tell you from general information which substitute evidence a judge will accept in your case. That is a question worth putting to a lawyer early, because the answer shapes what you gather and how the application is prepared.

It helps to understand the cost of uncertainty. Ontario says applications are typically processed within 15 business days, but it can take longer if documents are missing or a judge must decide an issue. How a gap in the witness evidence affects your application depends on the facts, so it is worth confirming with a lawyer.

Parts of the application that stay the same

You still complete Form 74A, signed before a Commissioner for Taking Affidavits, with the value of the real property, personal property and whole estate at the date of death. You also include a draft certificate, Form 74C.

• Serve a copy of the signed application on each estate beneficiary, meaning everyone entitled to a share, by email or by mail or courier to their last known address.
• For minors or incapable adults, the Office of the Children's Lawyer and the Public Guardian and Trustee may also need to be served.
• File in the county or district where the deceased lived, or where they owned Ontario property if they lived outside Ontario.
• A bond may be required, for example where the applicant is not the named trustee or does not live in Ontario, another Canadian province or territory, or a Commonwealth country.

The beneficiary service step matters here. If the witness evidence is thin, someone who was left out of the will, or who expected a bigger share, may take an interest in how the will is proved. Court staff check for other applications, objections and any more recent will.

How the court responds

If the application is refused, the registrar issues Form 74O with reasons. For small estates the equivalent is Form 74.1D, and the notice states the reason, such as a problem in the estate court record search or missing information.

If someone files an objection using Form 75.1, the applicant must serve Form 75.3 on the objector. At that point the matter is moving beyond paperwork and legal advice is strongly worth having.

If the application is granted, the certificate is issued electronically and emailed to the address you provided, unless you asked for a paper certificate.

What to do next

• Locate the original will and keep it safe; do not staple, mark or alter it.
• Write down who witnessed the will, when and where it was signed, and who prepared it, along with any contact details you can find for each witness.
• Note any alterations or handwriting on the will, since Form 74E is used if a will was altered or marked in some way and Form 74F attests to the handwriting and signature of a holograph will.
• List the beneficiaries and their last known addresses so service can be done properly.
• Estimate the estate value for Form 74A and for estate administration tax, which is $15 per $1,000 over $50,000.
• Ask a lawyer how to deal with the missing witness evidence before filing, not after a refusal.

Once a certificate is issued, an Estate Information Return is due to the Ministry of Finance within 180 calendar days, even if no tax is payable.

Frequently asked questions