February 6, 2023

Sometimes original last wills and testaments can become lost or destroyed.  But the original is required for an application for a certificate of appointment of estate trustee, or is otherwise needed to establish the authority of the estate trustee(s) or gifts in the will. Rule 75.02 of the Rules of Civil Procedure, RRO 1990, Reg 194, provides the court with authority to “prove” the contents and validity of a lost or destroyed will. The Rule states:

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.

There are many considerations in an application to prove the validity and contents of a lost or destroyed will. This is particularly the case where the application is contested. One question that is almost invariably asked is whether the testator destroyed the will with the intention of revoking it. If the will was intentionally revoked by the testator then there are likely individuals who will inherit on an intestacy. (Ontario’s intestate laws can be found in the Succession Law Reform Act, RSO 1990, c S.26 and set out the priority of intestate heirs). The individuals who stand to inherit on an intestacy may be different than the beneficiaries in the will and so two competing positions can emerge.

In situations such as this, there is a legal presumption that the testator destroyed the will with the intention of revoking it. The parties seeking to prove the will have the burden of rebutting the presumption. The analysis will be highly fact specific. For example, is there evidence that the testator no longer wanted her estate divided in accordance with the will?  Or was the testator the type of person who never threw anything away and never misplaced important documents?

Parties on both sides of the argument can adduce evidence but evidence must be corroborated (in accordance with s. 13 of the Evidence Act, RSO 1990, c E.23). Section 13 provides:

13 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.  R.S.O. 1990, c. E.23, s. 13.

Put simply, evidence that is self-serving must be supported by other evidence before a party will be successful (in either opposing or supporting the application).

A lost or destroyed will is not the end of the story. There is a procedure for determining whether an estate can be administered in accordance with the lost will or in accordance with our intestate laws.