In estate planning, wills protect and honor the wishes of an individual after their death. But what if the will gets lost or misplaced? Does this mean that the will is no longer valid or the person died intestate? Not necessarily. Under Ontario estate law, an individual may contest the loss or misplacement of a will if they can provide solid evidence proving the existence of the original document. However, doing so can be more complicated than it appears.
This blog post explains what you need to prove a lost or misplaced will and the steps to take if it happens.
What Is The General Presumption Regarding A Lost Or Misplaced Will?
Under Ontario law, if the last known version of the will was in the possession of the testator (the person who made the will), and it cannot be found after their death, the court may assume that the testator intentionally destroyed the will to revoke it. This is known as the presumption of revocation.
However, this presumption is not final. It can be challenged and overcome with strong, persuasive evidence showing that the testator did not intend to revoke the will and that reasonable steps were taken to locate it.
Essentials To Prove A Lost Or Misplaced Will
In Sorkos v. Cowderoy, 2006 CanLII 31722 (ON CA), the Ontario Court of Appeal ruled that a copy of the original last will may be probated if the evidence proves that it was not revoked.” The Court also laid down essential requirements to prove a lost or misplaced will. The court laid out four key elements that must be proven:
- Due Execution
Evidence that the will was properly signed and witnessed, as required under Ontario law. - Chain of Possession
A clear account of who held the will, when it was last seen, and what may have happened to it — especially if it went missing after the testator’s death. - Proof of Contents
Reliable evidence of what the will said — ideally through a copy of the original, or statements from those familiar with its contents. - Rebutting the Presumption of Revocation
Evidence that the testator did not destroy the will with the intention of cancelling it.
What Kind Of Evidence Helps Prove A Lost Will?
- Successfully proving a lost or misplaced will depends heavily on the quality of the evidence presented. Some key items may include:
- A copy of the signed will, if one exists
- An Affidavit of Execution from one of the original witnesses
- An Affidavit of Search outlining all efforts made to locate the original will
- Statements from family members, friends, legal professionals, or others who were aware of the will and its contents
- Any relevant emails, letters, or conversations that reflect the testator’s wishes and intent
This evidence must be detailed, credible, and consistent. The stronger the proof, the more likely the court is to accept the lost will for probate.
Safeguarding The Original Will Is Crucial
Before starting the probate process, an application for the lost or misplaced will must be filed, along with all necessary affidavits. The notice of the application is served upon all the beneficiaries, next of kin, and legal representatives. Thereafter, a court hearing is scheduled.
When a will is lost and it cannot be proved, the court will consider that the deceased died intestate and govern the distribution of the deceased’s estate according to the provisions of Ontario’s Succession Law Reform Act RSO 1990, c S.26.
To prevent such a situation, it is recommended to store the original will in a safe and secure place. Additionally, keeping digital and physical copies can be helpful but only an original will carries full legal authority.
Contact Us! We Will Guide You!
Losing a will can be stressful but it is not the end of the road. With strong evidence in place and competent legal representation, you can save yourself and your loved ones from the ordeal of such a situation. If you have questions or queries regarding estate law, feel free to contact the Estate Law lawyers at Ayaz Mehdi Professional Corporation.
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