A Will is an important legal document; it ensures that your estate is protected, your beneficiaries are provided for, and your final wishes are respected. It also allows you to engage in estate planning to minimize probate fees and delays. Not having a Will results in your estate being distributed under the legislative regime in the Succession Law Reform Act (SLRA) and may increase the expenses involved in settling your affairs. What happens when you know that there was a Will for the deceased, but it cannot be located? What can you do if you or your loved one’s Will is lost or destroyed?

(1) Conduct a Thorough Search for the Will

As noted in a previous blog, the first thing to do is conduct a thorough search for the Will. You should look through the testator’s personal papers and files, safety deposit boxes, contact the testator’s lawyer, and advertise in the Ontario Bar Association for other lawyers who might have information. If you are unsuccessful, then you may be able to apply to the court to “prove” the validity and contents of the lost Will, as set out below. 

(2) Court Application under Rule 75.02

Those with a financial interest in an estate can bring an application before the court to prove contents or validity of a lost or unintentionally destroyed Will. The process is set out in Rule 75.02 of the Ontario Rules of Civil Procedure:

75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,

(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or

(b) in the manner provided by the court in an order giving directions made under rule 75.06.

Under this application, you must serve a notice of application on anyone with an interest in the outcome of the proceeding, including beneficiaries under the lost Will and beneficiaries if the lost Will is not proven, either under a former Will or intestacy. If you can provide a photocopy of the Will and if all parties who have a financial interest in the estate agree that the provided proof is valid, then the court can declare that the lost Will is valid.[1]

However, if all interested parties do not agree that the lost Will is valid, then courts can turn to the common law test.

(3) Common Law Test

Sorkos v Cowderoy sets out the test for determining whether a contested lost Will can be proven. Under this test, the applicant advocating for the validity of the lost Will must show:

  1. due execution of the Will;
  2. evidence which traces possession of the Will to the testator’s date of death, and after, if the Will was lost after death;
  3. a rebuttal of the presumption that the testator destroyed the Will with the intention to revoke it; and
  4. proof of the contents of the lost Will.[2]

Applicants tend to have the most difficulty in proving the third element. Section 15(d) of the SLRA states that a Will can be revoked if the testator burns, tears, or otherwise destroys the Will or directs another person to do so with the intention of revoking it.

When a Will is missing, you cannot prove that the testator did not destroy it; as such, you must prove, on a balance of probabilities, that the testator did not have the intention to revoke it. To do so, you must overcome the presumption that, when the Will can be traced to the testator’s possession and cannot be found after their death, the testator destroyed the Will with the intention of revoking it.[3] Several factors are considered by the courts in deciding whether the presumption has been rebutted:

  • whether the terms of the Will are reasonable;
  • the testator’s relationship with the beneficiary;
  • whether the testator’s personal effects were destroyed before the search for the Will began;
  • whether the testator was careful and organized in taking care of their personal effects;
  • whether there were any dispositions of property during the testator’s lifetime which contradicted the terms of the Will;
  • statements made by the testator which confirm or contradict the terms in the Will;
  • evidence that the testator understood the consequences of not having a Will and having their estate being distributed on intestacy; and
  • whether the testator made statements which indicated that they had a Will.[4]

For instance, if there was evidence that the Will was important to the testator, that the testator intended to benefit their beneficiaries under the Will, and that their personal effects were burned after their death, then the presumption would be rebutted.[5] In contrast, if there was evidence that the testator was highly organized, careful with his belongings, and had complained about how he was treated by the primary beneficiary, then the presumption would stand.[6]

Beyond rebutting the presumption that the testator intended to revoke their Will, you also must prove due execution of the Will and its contents. As with the court application under Rule 75.02, a photocopy of the original Will is often sufficient to prove its contents. It is also important to have witnesses who are not beneficiaries under the Will that can attest to the due execution and the contents of the Will. An ideal witness would be the lawyer who drafted the lost Will.

Derfel Estate Law in Toronto Helps Executors Navigate Probate and Estate Administration

Executors have substantial obligations and responsibilities; this process is made difficult from the outset if the deceased’s Will cannot be located, which can also increase the risk of litigation. At Derfel Estate Law, our estate litigation lawyers assist executors with each step of the estate administration process. Call us at 416-847-3850 or reach out to us online to learn how we can help you minimize the cost and conflict involved in administrating your loved one’s estate.

This blog was co-authored by Kelli Preston and law student, Leslie Haddock.

[1] For example, see Vilenski v Weinrib-Wolfman, 2022 ONSC 2116 at paras 5-6.

[2] Sorkos v Cowderoy, 2006 CanLII 31722 (ON CA) at para 8.

[3] Lefebvre v Major, 1930 CanLII 4 (SCC), [1930] SCR 252 at 257.

[4] Levitz v Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 at para 19.

[5] Lefebvre, supra note 3.

[6] Thierman Estate v Thurman, 2013 BCSC 503.