Proving a Copy of a Missing Will in Toronto Probate

The situation

Yasmin's father died in his sleep at a retirement residence in Toronto, two years after he had sold the family condominium and moved into assisted living. He left behind a modest but real estate: a smaller condo he had bought after the sale, an investment account, and some savings, together worth somewhere in the range of $900,000 once his debts and the condo's mortgage were accounted for. He had two children from two marriages. Yasmin, his daughter from his second marriage, had managed most of his affairs in his final years and was named as estate trustee in a will he had signed a decade earlier. Liang, his son from his first marriage, lived across the country and had seen his father only a handful of times since childhood.

Yasmin brought her husband Samir, a paramedic, with her to the first meeting. Between his shifts, he had been the one driving her father to appointments during the two moves, and he remembered helping pack boxes of paperwork that never quite made it into the new, smaller apartment. That detail turned out to matter more than anyone expected, because when Yasmin went looking for her father's original signed will to start the probate process, it was nowhere to be found.

The problem

Probate is the court process that confirms an estate trustee's authority to deal with a deceased person's property — banks, land registry offices and investment firms generally will not release significant assets without it. The court issues a document called a Certificate of Appointment of Estate Trustee, and to get one, the applicant normally files the original signed will along with the application.

Yasmin had a copy. Her father's lawyer, now retired, had kept an unsigned drafting copy on file, and Yasmin also had a scanned photocopy her father had emailed her years earlier "just so you have it." What she did not have was the original with his wet signature and the signatures of his two witnesses. She and Samir had gone through every box from both moves without finding it.

Ontario law does not treat a missing original will as a minor inconvenience. When a will was last known to be in the testator's possession and cannot be found after death, the law presumes the testator destroyed it themselves, on purpose, in order to revoke it. That presumption exists because people are allowed to change their minds and tear up a will privately, without telling anyone. If the presumption stands, the father would be treated as having died without a valid will, and his estate would pass instead under Ontario's rules for intestacy — the fixed formula the law uses to divide property when there is no valid will. That formula splits an estate between all of a person's children in equal shares, regardless of what the will actually said.

Under the will's actual terms, Yasmin was to receive most of the estate, with a smaller share going to Liang. Under an intestacy, the two would split everything roughly equally. So the missing original was not just a procedural headache — depending on how it was resolved, it could shift a significant amount of money between the two siblings, and it gave Liang, who had never been close to their father and had reason to feel shortchanged by the will's terms, an obvious incentive to say nothing and let the presumption stand.

What we did

1. Confirmed the presumption applied, and what would rebut it. Because the will had last been in the father's own possession — he had taken his signed copy home from the lawyer's office at the time — the presumption of revocation applied by default. Rebutting it meant assembling evidence that the will's disappearance was more consistent with loss than with deliberate destruction.
2. Gathered the drafting file from the retired lawyer's former firm. Law firms generally keep closed files for a set retention period, and this one still had the father's file: the unsigned drafting copy, the lawyer's signing notes confirming the will was properly executed with two witnesses, and correspondence showing the father had never asked to change or revoke it in the following decade.
3. Built a timeline around the two moves. Samir's recollection of packing boxes that were never fully unpacked became a sworn statement, alongside records showing the sale of the original condominium and the deceased's admission to the retirement residence roughly two years before his death. Two moves in a short window, ending in a smaller unit with less storage, is exactly the kind of circumstance that can explain an honest loss rather than an intentional one.
4. Collected evidence that the father's intentions had not changed. We gathered statements from staff at the retirement residence and a family friend who had spoken with him about his estate plans in his final year. None of them recalled him expressing any wish to disinherit Yasmin or change how his estate would be split, which cut against the theory that he had torn up the will on purpose.
5. Gave formal notice to Liang before filing. Anyone who would benefit if the will were treated as revoked is entitled to know an application to prove a copy is being made, and to challenge it. We notified Liang early rather than filing quietly, both because it was required and because a contested application discovered after the fact tends to harden positions rather than soften them.
6. Opened a direct conversation about the money at stake. Once Liang's own lawyer confirmed he was considering opposing the application, we laid out plainly what each outcome meant in dollar terms — the will's split, the intestacy split, and the cost and delay of a contested court hearing to decide between them — so both sides could negotiate with real numbers rather than principle alone.

The outcome

Liang's lawyer did not think the presumption was hopeless to fight, but he also recognized the evidence Yasmin had assembled was strong: a matching lawyer's copy, credible signing notes, a documented reason for the loss, and no sign the father's wishes had shifted. Litigating the point in the Superior Court would likely have taken a year or more and consumed a meaningful slice of the estate in legal costs on both sides, with a real chance Liang would still lose and end up covering some of Yasmin's costs as well.

Instead of proceeding to a contested hearing, the two siblings negotiated. Liang agreed to consent to the copy being admitted to probate, avoiding a court fight over the presumption entirely. In exchange, Yasmin agreed to a modest adjustment to the will's original division — moving the split from 60/40 in her favour to 55/45 — which shifted roughly $45,000 of the estate's value toward Liang compared to what the will alone would have given him. Neither side got everything they might have argued for in court, but both avoided the cost, delay and uncertainty of fighting over it, and the estate did not have to absorb a year of litigation expenses eating into what either of them would eventually receive.

The court accepted the copy for probate on the strength of the affidavit evidence and the consent from the only person who stood to contest it. Yasmin was appointed estate trustee roughly five months after her father's death — later than an uncontested application with an original will would have taken, but well short of what a fully litigated dispute would have cost in time and money.

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