In Gaynes v. Gaynes, 2025 ONSC 5638 (“Gaynes”), the court was tasked with validating a photocopy of a Will after the original version of the Will was lost following the testator’s death.

Background

On February 14, 2022, Marlene Gaynes (the “Deceased”) passed away, predeceasing her husband, Donald Gaynes (“Donald”). Together, they had two children, Michael Gaynes (the “Applicant”), Robert Gaynes, and one grandchild, Dylan Gaynes (collectively the “Respondents”). The Deceased’s solicitor, Mr. McConnell had assisted the Deceased in executing her Last Will and Testament on July 23, 2010 (the “Will”) which Mr. McConnell held for safekeeping until her death.[1]

After the Deceased’s passing, Mr. McConnell provided the original copy of the Will to Donald. On August 19, 2022, Donald passed away, and the Applicant discovered that there were investments in the Deceased’s name that required probate. The Applicant was unable to find the original Will, only a photocopy in the Deceased’s residence.[2]

The Applicant commenced an application to validate the photocopy of the Will as the Deceased’s Last Will and Testament. The Respondents consented to the relief sought by the Applicant and did not challenge the evidence provided.

Analysis

The legal principles central to this decision include the requirements for proving a Will in solemn form and the standards for admitting a lost Will to probate. The court referenced Neuberger Estate v. York, 2016 ONCA 191, wherein the court outlined the necessity for the propounder of a Will to demonstrate due execution, testamentary capacity, and the testator’s knowledge and approval of the Will’s contents.[3]  Additionally, the court applied Rule 75.02 of the Rules of Civil Procedure, which allows a party to prove the validity of a lost or destroyed Will through affidavit evidence, provided all interested parties consent.[4]

Gaynes also relied on the test set out in Sorkos v. Cowderoy, (“Sorkos”) which provided that an applicant must rebut the presumption of revocation on a balance of probabilities when attempting to prove a lost Will.[5] The test is as follows:

(a)  Due execution of the Will;

(b)  Particulars tracing possession of the Will to the date of death, and afterwards if the Will was lost after death;

(c)  Rebuttal of the presumption that the Will was destroyed by the testator with the intention of revoking it; and

(d)  Proof of the contents of the lost Will.[6]

The court in Gaynes provided the following analysis pertaining to the presumption of revocation:

[14]      The Supreme Court instructed that in determining whether a lost will has been destroyed by the testator with the intention to revoke the lost will, the court may consider “the character of the testator and his relation to the beneficiaries, the contents of the instrument, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator”: … Ryan Bell J. held that to rebut the presumption that the testator destroyed the lost will, the Applicant “must demonstrate either (i) that the Will was not destroyed; or (ii) that there was no intention by [the deceased] to revoke the Will.[7]

The court found that the presumption of revocation was successfully rebutted based on the evidence provided by Mr. McConnell. He testified that he had retained the original Will until it was delivered to Donald, after the Deceased’s passing. This indicated that the Deceased did not have the opportunity to destroy the Will herself.[8] Furthermore, the court noted that the Will’s contents and the Deceased’s relationship with the beneficiaries supported the conclusion that there was no intention to revoke the Will.[9]

Another important factor that the court considered was that Donald and the Deceased had mirror Wills. This further supported that the Deceased did not intend to revoke the Will.[10]

The court ruled that the Will was valid and should be admitted to probate, as all parties with a financial interest consented to the Application.[11]

Concluding Comments

Gaynes underscores the court’s role in ensuring that a testator’s intentions are honored, even in the absence of an original Will. The Court’s decision to admit a photocopy of the Will to probate highlights the court’s willingness to consider comprehensive evidence to rebut the presumption of revocation.

—

[1] Gaynes v. Gaynes, 2025 ONSC 5638 [Gaynes] at para 6

[2] Ibid at para 7

[3] Ibid at para 8

[4] Ibid at para 10

[5] Ibid at para 11

[6] Ibid at para 11

[7] Ibid at para 14

[8] Ibid at para 15

[9] Ibid at para 16

[10] Ibid at para 16

[11] Ibid at para 17