When an original will is lost, there is a rebuttable presumption that the testator destroyed it, thereby revoking the will. This presumption applies so long as the will was last traced to the possession of the testator, and will apply, even if a copy of the lost will is found. However, it may be possible to probate a copy of that lost will – as noted in the most recent edition of Macdonell, Sheard and Hull on Probate Practice, the presumption of destruction can be “rebutted by evidence establishing that the testator inadvertently lost or misplaced the original will, or by evidence supporting a conclusion other than destruction.” When rebutting the presumption, the burden of proof is on the person who would like to admit the copy of the lost will to probate.
It now appears that it may also be possible to apply to the court to validate a copy of a lost will, or copies of pages from a partially lost will, under section 21.1 of the Succession Law Reform Act. This issue arose in Dunham v Gamble et al, 2025 ONSC 3449 – Justice Kalajdzic was asked to validate a will which consisted of several photocopied pages, plus the final page which bore the testator’s signature and the signatures of attesting witnesses. Whereas the other pages of the will had been photocopied, the signatory page was still the original document.
The application was opposed by the testator’s brother, from whom the testator had been estranged for many years. The brother did not share in the estate under the will –the testator instead left her estate to friends and charity.
Despite the fact that the first two pages of the will were irregular, Justice Kalajdzic concluded that the will could be validated since it was an authentic document and set out the testamentary intentions of the deceased. In terms of authenticity, there was unchallenged evidence from one of the witnesses to the will, who confirmed that the testator had signed it. The court also took note of the fact that the original signature page had been attached to the will and that the photocopied pages had been initialed by the testator and the witnesses to the will, which indicated that “[t]his is not a situation in which uninitialed pages of a will were slipsheeted” into the document put before the court for validation. While the will was not located where the testator indicated she stored it – her safety deposit box – a digital copy of the will was found on the testator’s computer as an MS Word file.
There was also “overwhelming evidence” that the document reflected the testator’s fixed and final intent to dispose of her property on death. The court considered a note which the testator had left for the estate trustee, written a few months before she passed away, which referenced her disapproval of her brother and confirmed that neither her brother or his family were to receive any of her personal items, consistent with the terms of the “lost” will pages. Had the testator changed her will before she died, the court also noted that there likely would have been a different MS Word version of the will on her computer.
In addition to the application to validate the copy of the will, the court was also asked to determine whether the presumption of destruction applicable to lost wills had been rebutted. Justice Kalajdzic found that it had, despite the suggestion made by the testator’s brother that she may have shredded her will. The court rejected this notion, holding that the shredder’s location in the testator’s basement and “the absence of evidence that it had been used prior to death or that it contained remnants of the Will diminished its weight.”
The analysis in this case also turned on the fact that the testator prepared her own will. Justice Kalajdzic recognized that she “may not have understood that photocopied pages attached to her original attestation did not constitute a valid will,” as other evidence indicated that she was unfamiliar with the formalities of will execution. For example, in the note that she left for her estate trustee, the testator cautioned against removing the staples from her will since “[t]here is some legal reason, I’m not sure why.”
Even though Justice Kalajdzic determined that the copy of the testator’s will could be validated and that the presumption of destruction had been rebutted, it remains unclear whether section 21.1 ought to be utilized to validate a copy of a will if the original cannot be found. On one hand, there is some overlap between the test applicable under section 21.1 and the test to prove a lost will, since “the court must determine if the lost/improperly executed will reflects the testator’s intentions” under both tests. However, the test applicable for will validation is not the same as the test applicable to rebut the presumption of destruction. In light of the current procedural uncertainty, Justice Kalajdzic suggested that it may be helpful in future cases “for the parties to turn their minds to the applicability of pre-amendment caselaw in order to avoid the application of two distinct legal tests to determine essentially the same legal question: i.e., whether the photocopied will is valid and fully effective.”
The question of whether a copy of a lost testamentary instrument can be validated appears to be a relatively novel issue in Canada, not just Ontario. Although the use of the will validation power to save a lost testamentary document was raised previously in Kontek v. Golay, 2021 SKQB 220, the outcome of that case ultimately turned on the court’s interpretation of Saskatchewan’s insurance legislation. While considering whether a handwritten note which had been lost could change the beneficiaries of a life insurance policy, the court briefly considered the presumption of destruction, implying that the question of whether a lost instrument has been revoked still must be considered when determining the validity of an irregular instrument.
Enjoy the rest of your day!
Suzana.