What happens when a Will exists, but the original document cannot be located after someone passes away?
For families and estate trustees (i.e. executors), this scenario can create uncertainty, delays, and even conflict. Ontario courts treat missing Wills seriously, applying a presumption that the testator destroyed the document with the intention to revoke it. However, the recent decision in the Carlsen Estate demonstrates how this presumption can be rebutted. By carefully examining the circumstances, relationships, and supporting evidence, the Court upheld the deceased’s intentions and validated a copy of a lost Will. In this article, I examine how the Carlsen Estate demonstrates the court’s approach to validating lost Wills.
I recently acted as counsel to the applicants in Carlsen Estate, 2026 (CV-23-00700781-00ES), a decision of the Ontario Superior Court of Justice. The Court granted an order validating a scanned copy of a 2012 Will pursuant to Rule 75.02 of the Rules of Civil Procedure. In granting the relief sought, this decision illustrates the kind of evidence and circumstances courts look at when deciding whether to validate a missing Will.
Under Rule 75.02, an applicant seeking to prove a lost or destroyed Will must establish due execution, prove its contents, and rebut the presumption that the testator destroyed the original with the intention of revoking it. The Court treats this presumption of revocation as a serious evidentiary hurdle. In the earlier decision of Gaynes v. Gaynes[1], for example, the presumption was more readily rebutted because the testator never had possession of the original Will after execution. She lacked the opportunity to destroy it herself, and there was evidence suggesting it had been misplaced by someone else. This factual matrix made it easier to conclude that the Will was lost, not intentionally revoked.
Carlsen Estate was more complicated. Prior to her death, the deceased prepared a Will directing her estate to a charitable organization. The deceased retained the original Will after the signing appointment with the drafting solicitor. On its face, that strengthens the presumption of revocation. There was no simple explanation involving a third party misplacing the document. Instead, the Court was asked to draw reasonable inferences from the circumstances surrounding the missing Will. These circumstances included the fact that the deceased suffered a stroke three years after signing her Will and moved into a long-term care facility. Around this time, she had retained counsel to prepare powers of attorney and confirmed with such counsel that she was content with and did not wish to change or update her existing 2012 Will. The solicitor’s reporting letter documenting those instructions became a critical piece of evidence.
Lost Will applications are won or lost on the quality of the evidentiary narrative. It is not enough to show that a Will once existed. The Court must be given a clear and convincing account of why the document is missing and why it was more likely lost by accident than destroyed on purpose.
In Carlsen Estate, affidavit evidence from the applicants, the drafting solicitors, and the deceased’s attorney for property demonstrated consistent testamentary intention over time and a plausible explanation for accidental loss during a period of medical and residential upheaval.
Justice Sanfilippo’s reasons reflect a contextual approach. The Court considered the deceased’s character, her estrangement from her children, and the consequences of the estate proceeding by way of an intestacy under the Succession Law Reform Act. If the Will had not been validated, the estate would have passed to the very individuals from whom she had been estranged for decades. There was no evidence to suggest that the deceased intended such a drastic change in the distribution of her estate. Importantly, her sons consented to the order declaring the Will valid, consistent with the Court’s review of the broader evidentiary picture.
What I find particularly significant about the finding in Carlsen Estate is that it reinforces a practical reality: possession of the original Will is not determinative. The presumption of revocation is strong, but it is not absolute. Courts will examine the totality of the evidence, including ongoing reliance on the Will, the absence of any expressed intention to revoke, logical explanations for loss, and the testator’s relationships.
For estate litigators, this decision underscores the importance of careful evidentiary construction when bringing applications under Rule 75.02. For estate planners, the decision is a reminder of the value of detailed solicitor notes, thorough reporting letters, and clear advice documenting the chain of custody of an original testamentary document.
At its core, Carlsen Estate is about protecting testamentary intention. The lost or misplaced original Will could have undermined the deceased’s considered and intended estate plan. If you are acting as an estate trustee dealing with a missing Will, or planning your own estate and want to ensure your intentions are safeguarded, we encourage you to contact a member of our estates team. This article is provided for general informational purposes only and does not constitute legal advice.
[1] Gaynes v. Gaynes, 2025 ONSC 5638 (CanLII), https://canlii.ca/t/kfrz5