Lost Wills in Canada: What Happens If the Original Disappears

A widowed 79-year-old in Burlington tells her daughter, repeatedly across the last two years of her life, that her will leaves the family cottage to the daughter and the city house to the son. After her death, the daughter searches the house thoroughly and finds only a photocopy of a 2015 will exactly matching her mother's description. The original cannot be located despite searches of the home, the safety deposit box, the drafting lawyer's office (which closed in 2019), and the provincial wills notice registry.

The Ontario Superior Court of Justice ultimately accepts the photocopy to probate after a contested application in which the daughter produces sworn affidavits from three family friends, the deceased's longtime accountant, and the deceased's parish priest - all testifying that the deceased had repeatedly affirmed her continuing intention that the 2015 will represent her wishes. The application takes eight months and involves substantial legal fees.

If the original had been kept in a fireproof, waterproof safe at home that the daughter knew about and could open, much of that time and cost might have been avoided.

The presumption of revocation in plain English #

Canadian common law inherits from English law the presumption of revocation: where the testator had custody of the original will and the will cannot be found after death, the law presumes the testator destroyed it with the intention of revoking it.^[1]

The presumption rests on two assumptions that are usually accurate. First, a testator who has the original will and decides they no longer want it will typically destroy it as the simplest way to revoke. Second, a will that was reasonably stored should normally be findable after death; a will that cannot be found despite diligent search is more likely to have been destroyed than to have simply vanished.

The presumption has substantial bite. Where it applies and is not rebutted, the testator is treated as having died intestate - the carefully drafted will may as well never have existed. The estate passes under provincial intestacy rules, which typically produce results quite different from what the will provided.

When the presumption applies #

Three factual conditions activate the presumption:

1. The testator made a will. The existence and execution of the will must be established (often through a copy, a lawyer's notes, or a wills notice registry entry).
2. The testator had custody of the original. The testator was the last person known to have possession of the signed original. Where the original was kept with the drafting lawyer, in a bank vault, or with another third party, the presumption is weaker or does not arise.
3. The original cannot be found after diligent search. A genuine search - home, safety deposit box, lawyer's office, accountant, family contacts, provincial registries - turns up only a copy or no document at all.

When all three conditions are present, the burden shifts to the party seeking to admit the copy or otherwise rely on the will. They must affirmatively prove that the testator did not intend to revoke.

Rebutting the presumption #

The proponent of a lost will must establish four things to admit a copy to probate:^[1]

1. The will was duly executed. Properly signed, properly witnessed, in compliance with the provincial succession statute in force at the time of execution.
2. The original can be traced through to the date of death. The chain of custody from execution to death needs to support the inference that the original existed at death rather than having been destroyed earlier.
3. The presumption of revocation is rebutted. Evidence that the testator did not intend to revoke - statements about the will, references in financial planning, the absence of any plausible motive to revoke.
4. The contents are proven. A clear copy is the strongest evidence; affidavit evidence from the drafting lawyer or witnesses is also accepted.

Each piece can be contested. Each piece requires supporting evidence. The application typically proceeds under the contentious-estates rules of the relevant province - Ontario's Rule 75 for example - and involves affidavit evidence, sometimes cross-examination, and frequently competing applications from interested parties who would prefer intestacy.^[4]

Strong rebuttal evidence #

The strongest rebuttal evidence falls into a few recognised categories:

Continued reference to the will by the testator. The deceased mentioned the will to family members, to professional advisors, to the executor named in the will. They referred to its terms in conversations about their estate. They updated other documents (beneficiary designations, real estate title) consistent with the will's continuing operation.

Absence of motive to revoke. The relationships in the testator's life remained stable. No family rupture suggesting they would have disinherited a beneficiary. No marriage or major life event that would have prompted revocation.

Custody by a third party. The original was held by the lawyer's office, the bank, or a wills notice registry - not by the testator personally. Where the original disappeared without the testator's involvement, the presumption is weaker.

Recent professional dealings consistent with the will. A financial planning meeting six months before death that proceeded on the assumption the will was in force. A tax planning strategy implemented on the basis of the will's provisions.

Weak rebuttal evidence #

By contrast, certain evidence carries little weight:

Self-serving family testimony alone. A single family member's recollection of what the deceased said, without corroborating evidence from neutral sources, is not generally enough.

The mere existence of a copy. A copy proves the contents but does not by itself rebut the presumption that the original was destroyed.

Long lapse of time without will renewal. If the will is decades old and the testator's circumstances have changed substantially, courts may be more receptive to the inference of revocation.

Practical prevention #

The single most effective protection against the lost-will scenario is straightforward: make sure someone other than the testator knows exactly where the original is and can reach it.

Three options work well in Canadian practice:

Keep the original in a fireproof, waterproof safe at home. This is what we suggest. Your executor should know where the safe is and how to open it, and the Life Discovery Kit records where the original is kept and where your executor can find the safe's access instructions. A backup copy, clearly marked as a copy, goes in a safety deposit box at the bank.

Store the original with the drafting lawyer. Most Canadian estates lawyers offer will storage. The will is in fireproof storage; the lawyer's office records the storage; on death, the executor contacts the firm. The main risk is the lawyer's firm closing (the Burlington scenario above) - though most firms transfer client files when winding down.

Store with a trusted third party. A trust company, the executor named in the will, or a family member other than a beneficiary. Less institutionally robust than lawyer storage.

Whichever option you choose, mark any copy "COPY" so no one mistakes it for the original, and make sure the executor knows exactly where the original is.

Avoid common storage mistakes #

Several frequently recommended storage methods turn out to cause more problems than they solve.

Safety deposit boxes can be problematic for the original. Some banks restrict access to safety deposit boxes after death, requiring a probate certificate before allowing the box to be opened, which can create a chicken-and-egg problem when the will itself is inside the box. That is why we suggest the box holds only a backup copy.

Home safes are useful only if the executor knows the combination. A fireproof home safe with no one else having the combination effectively makes the will lost when the testator dies.

Cloud storage of a scan is not a substitute for storing the original. Probate courts generally want the original, signed, witnessed will - not a digital copy. Cloud storage of a scan is fine as a backup record of contents, not as a primary storage strategy.

What we focus on at It's Simple Will #

The signing instructions in It's Simple Will remind you to keep the signed original safe and tell your executor where it is, and the Life Discovery Kit records where the original is kept. We suggest keeping the original in a fireproof, waterproof safe at home that your executor knows how to open, with a backup copy, clearly marked as a copy, in a safety deposit box at the bank.

The will is the cheapest document in your estate plan to draft and the most expensive one to lose. Treat the storage of the original as seriously as you treat the drafting itself.

Related reading: where to store your will in Canada, provincial wills notice registries, and our pillar on how to write a will in Canada.