It is often the case that when an individual dies, the original copy of their Last Will and Testament cannot be located. Whereas this can create obstacles during the probate process, there is a procedure to prove a copy of a lost Will in Ontario.

Governing Law

The procedure for proving a copy of a Will is particularised in Rule 75.02 of Ontario’s Rules of Civil Procedure,^[1] which notes as follows:

Proof of Lost or Destroyed Will

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.  O. Reg. 484/94, s. 12.

In Sorkos v. Cowderoy,^[2] the Court of Appeal noted that for an application to prove a lost will, they must demonstrate the following:

• due execution of the Will;
• 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; and
• proof of the contents of the lost Will.^[3]

Presumption of Revocation

Section 15(d) of the Succession Law Reform Act (“SLRA”),^[4] requires that in order for the revocation of a Will to be effective, it must be destroyed by “burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it”.^[5] This requires both the destruction of a Will and the actual intention to revoke it.^[6]

If an original Will which was last traced into the possession of the testator cannot be located following the death of the testator, a rebuttable presumption arises that the testator destroyed the Will with the intention of revoking it.^[7]

Therefore, in order to rebut the presumption of revocation, the applicant must demonstrate either: (i) that the Will was not destroyed; or (ii) that there was no intention by the testator to revoke the Will.^[8]

In Levitz v. Hillel Lodge Long Term Care Foundation (“Levitz”),^[9] Justice Bell applied a list of factors in the analysis of the presumption of revocation:

1. Whether the terms of the Will are reasonable:
2. the Testator’s relationship with the beneficiary:
3. Whether the Testator’s personal effects were destroyed prior to the search for the Will being carried out:
4. The Testator’s nature and character in taking care of personal effects:
5. Whether there were any dispositions of property during the Testator’s lifetime which confirm or contradict the terms of the copy of the Will sought to be probated:
6. Statements made by the Testator which confirm or contradict the terms of distribution set out in the Will:
7. Whether the Testator’s was of the character to store valuable papers, and whether the Testator had a safe place to store the papers:
8. Whether there is evidence that the Testator understood the consequences of not having a will and the effects of an intestacy:
9. Whether the Testator made statements to the effect that they had a will.

Evidence required

In order to prove the contents of a Will, the Applicant must adduce sufficiently cogent evidence that establishes beyond a reasonable doubt the contents of the Will. In this regard, Justice Robertson had the following to say in Re Craig:^[10]

The principle is well established that it is only upon clear and convincing evidence such as satisfies the mind of the Court beyond any reasonable doubt that it has before the testamentary intentions of the testator as expressed in the will that has been lost, that probate will be granted. (emphasis added)

Accordingly, in assessing the evidence going towards rebutting the presumption, a court must also have regard to section 13 of the Evidence Act,^[11] and the requirement for corroboration of material facts alleged by an opposite or adverse party.^[12]

The material evidence in corroboration must be independent of the adverse party, must help the judicial mind in accepting the material fact, and must materially enhance the probability of the truth of the adverse party’s statement.^[13]

Recent Example in Dunham v. Gamble

Dunham v. Gamble,^[14] concerned the Estate of Lynn Gloria Gamble (the “Deceased”), who died with a Last Will and Testament dated January 7, 2021 (the “2021 Will”).^[15]

The Deceased died with no spouse and no children and was predeceased by her parents. Her only surviving family member was her brother, Clarence Earle, (“Mr. Earle”), whom she had been estranged from for many years. The Deceased had been close friends for many years with her friend, Robert Dunham (“Mr. Dunham”).^[16]

Mr. Dunham brought an application to prove a copy of the 2021 Will. Amongst the Deceased’s personal belongings was a partial photocopy of the 2021 Will, as well as a previous Will dated January 25, 2012. Moreover, there was a Word copy of the 2021 Will found on the Deceased’s computer. The attestation page of the 2021 Will appeared to be original, but the first two pages were photocopies.^[17]

The Deceased’s co-worker, Mr. Renaud, confirmed that he was present together with a second witness when she executed the 2021 Will. The provisions of the 2021 Will clearly established the Deceased’s testamentary intentions. In her Will, the Deceased appointed Mr. Dunham to be the Estate Trustee and residuary beneficiary of her estate.^[18]

Presumption of Revocation

The Court applied the relevant factors outlined in Levitz, finding that there was sufficient evidence to rebut the presumption of revocation, including:

• The terms of the 2021 Will were reasonable – consistent with her prior 2012 Will;
• The Deceased maintained a good relationship with Mr. Dunham, the appointed Estate Trustee and residuary beneficiary, until her passing;
• There is little evidence that the Deceased’s personal effects were destroyed prior to the search for the 2021 Will. Her personal effects were intact;
• There were no dispositions of property to other beneficiaries that contradict the terms of the 2021 Will. The Deceased went so far as to stipulate in her August 13, 2024 notes that her brother, Mr. Earle, and his family were not to receive any personal items whatsoever; and
• The Deceased made several statements to the effect that she had a will.^[19]

Accordingly, the Court found sufficient evidence to establish, on a balance of probabilities, that the Deceased intended to revoke the 2021 Will.

Section 21.1 of the SLRA

The Court went on to consider section 21.1 of the SLRA, which provides the ability to validate a Will that was not executed in strict conformity with the execution requirements. Section 21.1 states as follows:

If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.^[20]

In Marsden v. Hunt et al.,^[21] Justice Faieta noted the two-part test that governs the application of section 21.1:

• First, is the document authentic? In this respect, “absent any concerns about the validity of her signature, the document can be accepted as authentic, and even the complete absence of witnesses can be overlooked” […].
• Second, does the document set out the “testamentary intentions” of the deceased? […] [F]or a document to set out the testamentary intentions of the deceased, the document must reflect a “fixed and final intention” as to the disposal of their property on death. […].^[22]

In this case, the Deceased’s 2021 Will had an irregularity – the photocopied first two pages of the Will – that Mr. Dunham sought to cure pursuant to section 21.1 of the SLRA. The Court found Mr. Dunham met the two-part test.^[23]

First, there was unchallenged sworn evidence from one witness, Mr. Renaud, who stated that he witnessed the Deceased sign the Will. There is no suggestion that the signature shown on the 2021 Will was not the Deceased’s signature.^[24]

Second, there is overwhelming evidence of the Deceased’s fixed and final intention as to the disposal of her property on death at the time she executed the 2021 Will. This includes: the original signature page was attached to the Will, the residuary beneficiary was also designated under her life insurance policies and RRSP, and the Deceased’s typed her own Will, and the digital copy of the Will was found on her computer.^[25]

Concluding Comments

The caselaw in Ontario is clear that applicants must marshal clear, corroborated evidence to prove a copy of a Will and rebut the presumption of revocation.

The recent decision in Dunham v. Gamble provides an example of this analysis and provides an interesting intersection between the legal test to both prove a copy of a Will and to validate the document with use of section 21.1 of the SLRA.

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[1] Rules of Civil Procedure, R.R.O. 1990, Reg 194.

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

[3] Ibid. at para 8.

[4] Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”).

[5] Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 at para 14.

[6] Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 at para 15.

[7] Alston v. Wagar Estate, 1996 CarswellOnt 194 at para 8; citing LeFebvre v. Major, [1930] S.C.R. 252; Sigurdson v. Sigurdson, [1935] 4 D.L.R. 529 (S.C.C.).

[8] Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 at para 15.

[9] Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 (“Levitz”).

[10] Re Craig, [1939] O.R. 175 (C.A.), Robertson C.J.O. (at 184).

[11] Evidence Act, R.S.O. 1990, c. E.23.

[12] Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253 at paras 16-17.

[13] Levitz at para 18.

[14] Dunham v. Gamble, 2025 ONSC 3449 (CanLII) (“Dunham”).

[15] Dunham at paras 1 and 2.

[16] Dunham at paras 4 – 8.

[17] Dunham at paras 9 – 12.

[18] Dunham at para 12.

[19] Dunham at para 29 (i – ix).

[20] SLRA, at section 21.1(1).

[21] Marsden v. Hunt et al., 2024 ONSC 1711.

[22] Ibid. at para 6.

[23] Dunham at paras 37 and 38.

[24] Dunham at para 39.

[25] Dunham at para 40.