In the recent decision of Gaynes v. Gaynes, 2025 ONSC 5638, the Ontario Superior Court of Justice held that a photocopy of a will could be admitted to probate, even though the original had been lost. Importantly, the court noted that the testator never had possession of the original well after its execution, which strongly rebutted the presumption of revocation. Indeed, the evidence appeared to be that the testator’ husband lost the original when he received it after she died.
Background: A Missing Will and a Clear Testamentary Intent
The testator passed away on February 14, 2022, survived by her husband and two adult children. Her grandson was also named as a beneficiary under her will.
The central issue before the court was whether a photocopy of the testator’s will could be admitted to probate when the original could not be located.
The application was brought by the testator’s son, who found a photocopy of the will while administering his father’s estate. Evidence showed that the testator’s lawyer had retained the original will in safekeeping and delivered it to the testator’s husband after her death. However, the original was never recovered.
The Court’s Jurisdiction
The court emphasized its inquisitorial role in probate matters, as outlined in Neuberger Estate v. York. It is the court’s duty to determine what document(s), if any, constitute the testator’s last will and testament. This includes verifying that the will was duly executed, the testator had testamentary capacity, and that they had knowledge and approval of the contents.
Legal Test for Admitting a Lost Will
To determine whether the photocopy could be admitted, the court applied the four-part test from Sorkos v. Cowderoy (Ontario Court of Appeal):
- Due execution of the will;
- Evidence tracing possession of the will up to and after the testator’s death;
- Rebuttal of the presumption that the testator destroyed the will with the intention to revoke it;
- Proof of the contents of the lost will.
The court found that all four criteria were satisfied:
- The will was validly executed in 2010 in the presence of two witnesses.
- The original was held by the testator’s lawyer until her death, then delivered to her husband.
- There was no evidence that the testator ever intended to revoke the will.
- The contents were clearly established by the photocopy, corroborated by affidavit evidence from the lawyer and the testator’s son.
Importantly, the court noted that the testator never had possession of the original will after its execution, which strongly rebutted the presumption of revocation.
Consistency and Intent
The court also found persuasive the fact that the testator’s will was executed on the same day and drafted by the same lawyer as her husband’s will. Both documents made identical provisions: everything to the surviving spouse, with a gift-over to their children and a specific bequest to their grandson Ian upon the second death. This mirrored structure supported a clear and enduring testamentary intent.
Outcome
The court concluded that the presumption of revocation had been successfully rebutted. Since the original will had been in the husband’s possession following the testator’s death and there was no evidence it was intentionally destroyed, the photocopy was admitted to probate as the testator’s valid last will and testament.
Key Takeaways for Estate Planning and Administration
- Thorough Documentation is Critical: This case highlights the importance of maintaining clear records and chain of custody for original estate documents.
- Lost Wills Can Be Probated: With strong evidence, including a valid photocopy and corroborating affidavits, courts may admit a lost will despite the absence of the original.
- Rebutting the Presumption of Revocation: When the original will cannot be found, courts may presume it was destroyed with intent to revoke. However, that presumption can be rebutted by credible evidence showing otherwise.
In conclusion, Gaynes v. Gaynes serves as a valuable precedent for probate practitioners navigating cases involving lost wills. It demonstrates the evidentiary burden required and affirms that courts will prioritize testamentary intent where the legal requirements are clearly met.
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