Probating a Lost Will or a Copy of a Will in Ontario
Where a will was last known to be in the testator's own possession and cannot be found after death, Ontario law presumes the testator destroyed it intending to revoke it. That presumption can be rebutted, and a copy or draft can be admitted to probate, but not on an ordinary probate application. Rule 75.02 of the Rules of Civil Procedure provides that the validity and contents of a lost or destroyed will may be proved on an application, either by affidavit evidence without appearance where everyone with a financial interest consents, or in the manner the court directs on a motion for directions. This article explains the four things the Court of Appeal requires you to prove, what rebuts the presumption, the consent route that avoids a hearing, and what happens to the estate if the application fails.
What Is the Presumption of Revocation?
Ontario starts from the position that a missing will was deliberately destroyed. The presumption is often given its Latin name, animo revocandi, meaning with the intention of revoking. If the original cannot be produced and it was last in the testator's hands, the law's opening assumption is that the testator destroyed it themselves and meant the will to be at an end.
The presumption exists because revocation by destruction is a real method of revoking a will. Under section 15 of the Succession Law Reform Act, a will can be revoked by burning, tearing or otherwise destroying it, by the testator or by another person in the testator's presence and by the testator's direction, with the intention of revoking it. Both elements are required. Destruction without the intention does not revoke, and the intention without destruction does not revoke either.
It is a presumption, not a rule. It shifts the starting point and puts the work on the person seeking to prove the will. It does not decide the case.
The presumption depends on possession. Where the testator never had the original after it was executed, the foundation for the presumption weakens considerably, because a person cannot be presumed to have destroyed a document they did not hold.
What Must You Prove Under Rule 75.02?
In Sorkos v. Cowderoy, 2006 CanLII 31722, the Ontario Court of Appeal set out what an applicant seeking to prove a lost will has to establish. Four elements:
Due execution of the will, in accordance with the requirements of the Succession Law Reform Act.
Particulars tracing possession of the will to the date of death, and afterwards if the will was lost after death.
Rebuttal of the presumption that the will was destroyed by the testator with the intention of revoking it.
Proof of the contents of the lost will.
The third element is where these applications are won and lost. The first two are generally provable from the drafting lawyer's file and the witnesses. The fourth is provable from an executed copy or the lawyer's retained draft. The third requires evidence about what the testator intended, which is precisely the evidence that tends to be missing.
The standard of proof on the contents is unusually high. In Sorkos the Court of Appeal noted that in Ontario it appears the applicant must prove that the contents reflect the testamentary intentions of the testator beyond a reasonable doubt, citing Re Craig, [1939] O.R. 175. Other jurisdictions have applied a lower standard. This is a point worth raising early with anyone weighing whether to bring the application, because it is a demanding threshold for a civil proceeding and it is not widely advertised.
What Rebuts the Presumption?
Evidence that the testator never held the original. This is the strongest answer available, because it removes the factual basis for the presumption rather than arguing against it. Where the drafting lawyer retained the original and it went missing from their office or after delivery to a family member, the testator had no opportunity to destroy it. In Gaynes v. Gaynes, 2025 ONSC 5638, the court admitted a photocopy of a will to probate where the testator had never had possession of the original after execution and the evidence suggested it was lost by someone else after her death.
Evidence that the testator gave the original to someone else. In Sorkos itself the will had been entrusted to the testator's long-term partner rather than kept by the testator, which undermined the presumption.
Statements of continuing intention. What the testator said about their estate plans, to whom, and when. Consistency between the terms of the missing will and the testator's expressed wishes over time is persuasive.
Conduct inconsistent with revocation. A testator who told the executor where the will was kept, who referred to the will in later dealings, or who made arrangements that only make sense if the will stood, was not behaving like someone who had torn it up.
A thorough and documented search. Records showing the safety deposit box was opened, the home was searched, the drafting firm and successor firms were contacted, and any will registry was checked. A search that was not thorough leaves open the simplest explanation for the absence.
Capacity evidence, where it applies. Where there is no evidence about when the will went missing and the testator lacked testamentary capacity, courts have held the presumption does not operate, because a person without capacity cannot form the intention to revoke.
| Fact pattern | Effect on the presumption |
|---|---|
| Original was kept by the testator and cannot be found | Presumption applies at full strength |
| Original was held by the drafting lawyer and never returned | Foundation for the presumption is substantially weakened |
| Original was given to a partner, executor or family member to hold | Presumption is weakened, as in Sorkos |
| Testator repeatedly confirmed the will stood | Supports rebuttal |
| Testator lacked capacity and the timing of the loss is unknown | Presumption has been held not to operate |
| The estate was searched thoroughly and the search is documented | Supports rebuttal by removing the simpler explanation |
How Does the Application Work?
Rule 75.02 gives two routes, and the difference is significant in cost.
The consent route. Where all persons who have a financial interest in the estate consent to the proof, the validity and contents may be proved by affidavit evidence without appearance. No hearing, no cross-examination, no trial. This is available far more often than people expect, particularly where the beneficiaries under the missing will and the people who would inherit on an intestacy are the same family members who all understood what the deceased wanted.
The contested route. Where consent is not forthcoming, the matter proceeds in the manner provided by the court in an order giving directions under Rule 75.06. That order shapes what follows: the issues, the evidence, the timetable, and whether there will be oral evidence.
Identify the opposing interest before you start. The people with a reason to oppose are those who do better if the will is not proved, generally the intestate heirs or the beneficiaries of an earlier will. Working out who they are and what they want is the first practical step, because their position determines which route is available.
A regular probate application is still needed. Proving the will under Rule 75.02 establishes the document. The certificate is applied for separately, and our guide to applying for probate in Ontario covers that process.
If you're still trying to locate the will itself before you get to this stage, our guide on how to get a copy of a will in Ontario walks through the search and court-access steps.
What Happens If the Will Cannot Be Proved?
The estate is administered as though the will never existed, unless an earlier will survives that was never revoked or was validly revived, and can be proved.
An earlier will may govern, but only in defined circumstances. A revocation clause in a later will takes effect only if the later will was valid and operative, so where the later document was invalid from the outset it may never have revoked the earlier one. Where an earlier will was validly revoked, however, revoking or destroying the newer will does not bring it back automatically. Revival is governed by section 19 of the Succession Law Reform Act: a revoked will may be revived by a later will, by a codicil showing an intention to give effect to the revoked will, or by re-execution of it with the required formalities, subject to the court's validating power in section 21.1. That is why the drafting lawyer's file matters even for superseded documents.
If no will can be proved, the intestacy rules apply. The estate passes under Part II of the Succession Law Reform Act in a fixed statutory order that pays no attention to what the deceased actually wanted. Our guide to what happens when someone dies without a will in Ontario sets out that order and the preferential share.
The gap between the two outcomes is the whole value of the application. For a testator whose will left everything to a partner they never married, or to a charity, or unequally between children, an unproved will and an intestacy produce entirely different estates.
Where This Goes Wrong
Searching casually and then applying. The court will want particulars of the search. A search conducted after the application is drafted looks like what it is.
Assuming a photocopy is enough on its own. A copy proves contents. It does nothing about the presumption of revocation, which is a separate element.
Waiting. Memories fade, drafting lawyers retire, and firm files are destroyed after their retention period. The evidence that rebuts the presumption has a shelf life.
Distributing on the strength of a copy without proving it. An estate trustee named in a valid will derives authority from the will itself, but until a lost will is proved it remains unresolved whether that authority validly exists. Administering and distributing on an unproved copy therefore carries substantial personal risk if the will is ultimately not proved.
Treating consent as unavailable because relations are strained. Consent under Rule 75.02 is about the outcome, not about warmth. Beneficiaries who agree on what the deceased wanted can consent while agreeing on very little else.
Not looking for an earlier will. Where the missing will cannot be proved, an earlier one may be the difference between the intended distribution and an intestacy.
A missing original is one of the situations where early advice changes the outcome, because the available evidence is at its best immediately after the death and the choice between the consent route and a contested application is often still open. You can book a free call to talk through what you have.
Frequently Asked Questions
Can you probate a copy of a will in Ontario?
Yes, on an application under Rule 75.02 of the Rules of Civil Procedure. The applicant has to prove due execution, trace possession of the original to the date of death, rebut the presumption that the testator destroyed it intending to revoke it, and prove the contents.
What is the presumption of revocation?
Where 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 with the intention of revoking it. The presumption can be rebutted with evidence, and it is weaker or absent where the testator never held the original.
Who has to prove that a lost will was not revoked?
The person seeking to prove the will carries that burden. The presumption operates against the will, so the propounder has to displace it rather than the objector having to establish revocation.
Does everyone have to go to court to prove a lost will?
Not necessarily. Rule 75.02 allows the validity and contents to be proved by affidavit evidence without appearance where all persons with a financial interest in the estate consent. Where consent is not available, the matter proceeds as the court directs on a motion for directions under Rule 75.06.
What happens if the original will was held by the lawyer and the office lost it?
That situation tends to help rather than hurt. The presumption rests on the testator having had the opportunity to destroy the will. Where the original was never returned to the testator, the foundation for the presumption is substantially weakened, and courts have admitted copies to probate on that basis.
What if the lost will cannot be proved?
An earlier will may govern if it was never revoked or was validly revived under section 19 of the Succession Law Reform Act, and can be proved. Revoking or losing a later will does not revive an earlier one automatically. If no valid operative will remains, the estate passes on an intestacy under Part II of the Act, in the statutory order, regardless of what the missing will said.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.
