What is the presumption of destruction in Ontario lost will proceedings?

When a will was last known to be in the testator's possession and cannot be found after their death, Ontario law presumes the testator destroyed it deliberately with the intention of revoking it. This presumption originates from the Supreme Court of Canada decision in Lefebvre v. Major (1930) and was confirmed by the Ontario Court of Appeal in Sorkos v. Cowderoy, 2006. The presumption may not apply in two circumstances: (1) where the testator was not in possession of the will when it went missing, or (2) where the testator had lost the mental capacity to form the intention to revoke by the time the will disappeared. Even where the presumption applies, it can be rebutted on a balance of probabilities by the person propounding the will.

How are documents and records produced in Ontario estate litigation?

Document production in Ontario estate litigation is governed primarily by Rules 30.10 and 75.06 of the Rules of Civil Procedure. Production requests must be meaningful, targeted, and proportionate. In Kacin v. Kacin, 2024, Justice Somji declined to grant broad production orders, citing Taylor v. Reid, 2022 and Bayliss v. Burnham, 2023, noting that relevance must be clearly established and the scope must be proportionate. The court approved a structured, sequential process: a party submits a request to the Estate Trustee, who circulates it to counsel, considers objections, and forwards a refined request to the record holder. Parties are also expected to review already-agreed-upon records before seeking further production, helping to manage costs and preserve estate funds.

When a Will Cannot Be Found: What Ontario Families Need to Know About Lost Wills, Estate Trustees, and the Road to Probate

Q: Can a lost or missing will still be probated in Ontario?

Yes, a lost or missing will can still be probated in Ontario. However, the person seeking to probate the missing will must satisfy a four-part test recognized by the Ontario Court of Appeal in Sorkos v. Cowderoy, 2006, and reconfirmed in Kacin v. Kacin, 2024. The four elements are: (1) the will was duly executed in accordance with Section 4 of Ontario's Succession Law Reform Act; (2) particulars tracing possession of the will up to the date of death; (3) rebuttal of the presumption that the will was intentionally destroyed by the testator; and (4) proof of the actual contents of the lost will. All four elements must be satisfied before a court will admit the will to probate.

Q: What is an Estate Trustee During Litigation and when will an Ontario court appoint one?

An Estate Trustee During Litigation is a neutral, court-supervised administrator appointed under Rule 75.06 of Ontario's Rules of Civil Procedure to manage and preserve estate assets while underlying legal disputes are resolved. As confirmed in Baran v. Cranston, 2020, a court should refuse such an appointment only in the clearest of cases. In Kacin v. Kacin, 2024, Justice Somji appointed an Estate Trustee Despite Litigation over an estate valued at approximately $175,000 CAD, citing a deeply entrenched family dispute, disagreements over document production, and differing positions on costs and process. The court noted that a neutral administrator can facilitate mediation rather than impede it.

Q: Can a guardian or caregiver claim compensation from a deceased person's estate in Ontario?

Yes. Under Ontario's guardianship legislation, a person formally appointed as a guardian of property or person for an incapable adult is entitled to compensation, and may also have a claim against the estate following the incapable person's death for expenses legitimately incurred during the guardianship. In Kacin v. Kacin, 2024, a sibling who had been appointed as her mother's guardian in 2020 sought compensation of $28,315.00 CAD for expenses incurred fulfilling her guardianship duties. The court recognized this as a live issue to be resolved on the merits. Whether you are a guardian seeking compensation or a beneficiary disputing such a claim, the evidentiary and procedural framework is specific and must be engaged carefully.

Red Booth Law
Feb 1
11 min read

Updated: 16 hours ago

Close up of old English red telephone booth in an estate lawyer office in Ontario, Canada.

A missing will does not automatically mean the wishes of the deceased are lost, but pursuing those wishes through the courts requires a clear understanding of what Ontario estate law demands, what presumptions work against you, and why the guidance of an experienced wills and estates administration lawyer in Ontario is essential to your situation.

Can a lost or missing will still be probated in Ontario?

What is the presumption of destruction, and how does it affect a lost will in Ontario?

What standard of proof applies to establishing the contents of a lost will in Ontario?

What is an Estate Trustee During Litigation, and when will an Ontario court appoint one?

How are documents and records disclosed and produced in Ontario estate litigation?

Can a guardian or caregiver claim compensation from a deceased person's estate in Ontario?

Can a lost or missing will still be probated in Ontario?

The short answer is 'yes'. However, the legal burden on the person seeking to probate the missing will is a meaningful one. The Ontario Superior Court of Justice does not simply accept someone's account that a will existed and said what they claim. Before a court will admit it to probate, the law requires the person proposing the lost will to satisfy a four-part test . This test, which has been recognized and applied by the Ontario Court of Appeal, exists to protect the integrity of the estate administration process and to ensure that only genuinely valid testamentary documents take legal effect.

The leading authority on this issue is Sorkos v. Cowderoy, 2006, an Ontario Court of Appeal decision that still remains the foundational reference for lost will proceedings in this province. In that case, the Court articulated the four elements a proponent of a lost will must establish: first, that the will was duly executed in accordance with Section 4 of Ontario's Succession Law Reform Act; second, up to the date of death (and afterward, if the will went missing after the testator died), particulars tracing to the possession of the will; third, rebuttal of the presumption that the will was intentionally destroyed by the testator; and fourth, proof of the actual contents of the lost will. With this test being reconfirmed by the Ontario Superior Court of Justice in the case of Kacin v. Kacin, 2024, prior to probating a lost will, each of these elements must be satisfied.

The requirement to trace possession is not a technical formality, it goes to the heart of the inquiry. In general, the courts want to understand where the will was kept, who had access to it, whether it was last seen in the testator's own hands or those of someone else, and what happened between the time the will was last seen and the date of death. A gap in this account may not be fatal to the case, but it will require explanation and supporting evidence. The more complete and credible the chain of possession, the stronger the case for admitting a copy of the will to probate.

Ontario estate law recognizes that original documents are lost for many reasons, e.g., moving from one house to another, floods, fires, disorganization, the frailty of age and entering into a long term care facility, etc., none of which reflect an intention to revoke a last will and testament. The courts in Ontario are not closed to lost will applications; however, such applications require careful and thorough preparation. If you are in a situation where a will has gone missing and the estate cannot move forward without it, speaking with a wills and estates lawyer in Ontario who understands the evidentiary demands of this kind of proceeding is the most important step you can take.

What is the presumption of destruction, and how does it affect a lost will in Ontario?

When a will was last known to be in the testator's possession and cannot be found after their death, Ontario law presumes that the testator destroyed it deliberately and with the intention of revoking it. For anyone seeking to propound a lost will, this concept is known as the "presumption of destruction". The presumption in itself does not arise because courts are suspicious. Rather, this presumption reflects the practical reality that a testator who wanted their will to take effect would ordinarily have taken steps to preserve their testamentary instruments. When the original will cannot be found, the most natural inference is that the testator chose to deliberately end its legal force.

The origins of this presumption can be traced to Lefebvre v. Major, [1930], where the Supreme Court of Canada held that when a will is traced to the possession of the testator and cannot afterward be found, there arises a presumption that it was destroyed with the purposeful intention of revoking it. The Ontario Court of Appeal confirmed this principle in Sorkos v. Cowderoy, 2006, and outlined two circumstances under which the presumption may not apply: at the time it went missing, the testator was not in the possession of their last will; or where the testator had lost the mental capacity to form the intention to revoke by the time the will disappeared.

In Sorkos v. Cowderoy, 2006, the testator had entrusted the will to her common-law partner of forty years, meaning it was not in her own possession when it disappeared, which undermined the basis for the presumption entirely. The court also found that, due to advancing Parkinson's disease, the testator had likely lost capacity by the time the will went missing, which provided an independent reason to doubt that any destruction, if it occurred, was intentional. Even where the presumption does apply, it can be rebutted. However, on a balance of probability, the onus falls strictly on the person propounding the will to provide sufficient evidence to displace it.

In Kacin v. Kacin, 2024, one sibling sought to propound a 2011 will that named her as sole beneficiary, while the other siblings resisted, relying precisely on this presumption. The deceased had experienced significant mental health challenges throughout her life, challenges that had resulted in police interventions and hospitalization, and this formed part of the argument that she may have lacked capacity to intentionally revoke any will. Whether the presumption applies, and whether it can be rebutted, is often the central battleground in Ontario lost will proceedings, and it is rarely resolved without experienced estate litigation counsel on both sides.

What standard of proof applies to establishing the contents of a lost will in Ontario?

Establishing that a will once existed and establishing the contents of that will are related, yet legally distinct, evidentiary issues. In Ontario, the existence of a will must be proven on a balance of probabilities. On the other hand, even where a court is satisfied that a will was duly executed and was not intentionally destroyed, it must also be satisfied as to the actual contents of the document. The standard that has historically applied to this question has been demanding: the proponent of a lost will must prove the contents beyond a reasonable doubt, the same standard used in criminal proceedings. This reflects the courts' concern that estate assets should not be redistributed on the basis of uncertain or reconstructed evidence.

The Court of Appeal in Sorkos v. Cowderoy, 2006, acknowledged that other jurisdictions have moved toward a lower standard, being the proof on a reasonable probability, but declined to alter the Ontario standard. The court's acknowledgment that the issue may warrant reconsideration in a future case leaves open the possibility of evolution in Ontario law, but for now the beyond-reasonable-doubt standard for contents remains as the governing rule in the Province of Ontario.

In practice, a copy of the will, whether held by the drafting will lawyer or a family member, forms the foundation of the contents proof. Again, in Sorkos v. Cowderoy, 2006, TWO (2) independent witnesses who had watched the testator sign the will gave evidence at trial identifying the copy as being accurate. The file of the will drafting lawyer, correspondence between the testator and her lawyer, draft versions of the will, and the testator's own communications about her testamentary intentions all contributed to a full body of robust evidence that left no room for doubt. Essentially, the more comprehensive the paper trail, the more defensible the case will be.

In Kacin v. Kacin, 2024, partially in part because the retained Brockville estate planning lawyer had retained a copy, the parties mutually agreed that the contents of the 2011 Will could be established. The court noted that the first and fourth elements of the lost will test, due execution and proof of contents, were conceded, leaving the litigation to focus on the contested questions of possession and the presumption of destruction. This illustrates how the four-part framework operates in practice: not all elements are always contested, but all must be addressed, and strategic clarity about which ones are genuinely in dispute can significantly shape how estate litigation is structured and resourced.

What is an Estate Trustee During Litigation, and when will an Ontario court appoint one?

When a will challenge is in dispute and the estate cannot be administered in the due course, Ontario courts have the authority to appoint an Estate Trustee During Litigation. This is an individual who is a neutral, court-supervised administrator. While the underlying legal issues are being resolved, the Estate Trustee During Litigation's role is to manage and preserve the estate's assets. This appointment is made under Rule 75.06 of Ontario's Rules of Civil Procedure, and its purpose is to provide independent oversight in circumstances where the parties may be unable to do so effectively, thereby safeguarding the estate from dissipation, tax arrears, or further conflict pending the resolution of the estate litigation.

The threshold for such an appointment is not exceptionally high. As confirmed in Baran v. Cranston, 2020, a court should refuse to appoint an Estate Trustee During Litigation only in the clearest of cases, not the reverse. The appointment is understood to level the playing field and protect all interested parties from the risk that one side might, consciously or otherwise, take steps that affect estate assets to their own advantage. Estate administration in Ontario is built on the principle of neutral stewardship, and when litigation disrupts that, judicial intervention is a natural and legitimate remedy.

In Kacin v. Kacin, 2024, even though the estate was relatively modest in value, approximately ONE HUNDRED SEVENTY-FIVE THOUSAND CANADIAN DOLLARS ($175,000.00 CAD), primarily held in GICs with the Royal Bank of Canada, Justice Somji appointed an Estate Trustee Despite Litigation. The deciding factors were not the size of the estate but the nature of the conflict: a long-standing, deeply entrenched family dispute among three siblings, a disagreement about the production of documents, and differing positions on costs and process. The court found that these circumstances justified a neutral third party taking control, and that the appointment would facilitate, rather than impede, the parties' shared goal of reaching mediation.

The Estate Trustee that was appointed in Kacin was also designated as the mediator for the proceeding, Importantly, the court was explicit that the appointment of an Estate Trustee does not prevent parties from pursuing mediation; if anything, having a neutral administrator managing document production and estate assets can ensure that mediation proceeds more efficiently. Where you are involved in estate litigation in Ontario and concerned about what is happening to the estate's assets in the meantime, understanding your options are critically important and should be explored.

How are documents and records disclosed and produced in Ontario estate litigation?

Document production in estate litigation follows the general framework of Ontario civil procedure, but with important nuances specific to the Ontario probate and estate administration context. The governing provisions are particularly found in Rules 30.10 and 75.06 of the Rules of Civil Procedure, which together govern the production of documents held by parties and, in appropriate circumstances, by third parties. Requests for production must be meaningful and targeted. Where the relevance has not been clearly articulated, the Superior Court will not order the wholesale disclosure of documents.

In Kacin v. Kacin, 2024, the applicant sought broad production orders covering an extensive range of financial and other records held by the named respondents. Finding them overly broad and insufficiently particularized, Justice Somji declined to grant those orders. Drawing on Taylor v. Reid, 2022, and Bayliss v. Burnham, 2023, the court noted that production orders, particularly those involving third-party records, require a determination that the specific records requested are relevant, that the persons holding those records have been heard, and that the scope of production is proportionate to the needs of the proceeding. A blanket order will not substitute for that analysis.

The production process approved by the court in Kacin was structured and sequential: a party seeking additional records submits the request to the Estate Trustee, who circulates it to all counsel for comment, considers any objections, and then forwards a refined version of the request, with an undertaking to pay reasonable costs, to the relevant record holder. Upon receipt of the records and payment of charges, the Estate Trustee distributes copies to all parties. This process was designed to minimize cost, avoid duplication, and prevent the litigation from becoming a production war that exhausts estate funds before any resolution is reached.

The court also recognized a practical sequencing point Before requesting additional documents, parties should first review the records that are already agreed upon. In Kacin, those were the solicitor's file related to the 2011 Will and the deceased's medical records. Further production may well become necessary, but reviewing what is already available can reveal that many anticipated requests are unnecessary. For anyone navigating Ontario's state litigation law, this principle of measured, staged disclosure, rather than seeking everything at once, is both a legal requirement and a practical strategy for managing costs and protecting the estate.

Can a guardian or caregiver claim compensation from a deceased person's estate in Ontario?

As Ontarian's age and family members take on formal caregiving roles, sometimes under a Guardianship Application Court Order, this is a question that arises with increasing frequency. Under Ontario's appointment of legal guardian legislation, where a person has been officially named as a guardian of property or person for an incapable adult under, that role carries legal obligations, but also legal entitlements. Ontario's statutory and regulatory framework provides a structure for calculating compensation owed to an appointed guardian. This may also include a claim against the estate following the incapable person's death for expenses legitimately incurred during the time of guardianship.

In Kacin v. Kacin, 2024, a role she held until the deceased's death in January of 2023, ONE (1) of the THREE (3) siblings had been appointed as her mother's guardian and trustee in 2020. She was the only sibling who had maintained a relationship with her mother during the final years of her life, and the only one involved in her care and wellbeing. Following the death, the appointed guardian, Yelka, sought compensation of TWENTY-EIGHT THOUSAND THREE HUNDRED FIFTEEN CANADIAN DOLLARS ($28,315.00 CAD) for expenses incurred in the course of fulfilling her guardianship duties.

The court did not resolve the compensation claim on the motion, but recognized it as a live issue to be addressed on the merits. With one of the siblings not opposing the claim, the other disputed both the entitlement and the quantum. This is a relatively common dynamic in estates where one family member has borne the practical and emotional weight of caregiving while others were absent, and where the distribution of the estate later becomes contested. The question of compensation intersects with questions about the will and the beneficiaries in ways that can significantly affect the ultimate outcome of the estate administration.

If you have served as a guardian or caregiver for a loved one in Ontario, whether formally appointed by the court or under a power of attorney, and you are now navigating the administration of their estate, your potential entitlements under the applicable legislation are worth understanding clearly. Equally, if you are a beneficiary who believes a compensation claim is excessive or unfounded, the evidentiary and procedural framework for challenging such a claim is specific and must be engaged with care. These issues, left unresolved, have a way of compounding the cost and duration of estate litigation considerably.

Estate law in Ontario, particularly when a will has been lost, a family is divided, or an estate is caught in litigation, is rarely as simple as it first appears. What begins as a question about a missing document can quickly expand into a full examination of testamentary capacity, family history, guardianship compensation, and document production disputes. The legal framework is clear, but applying it well demands experience, strategic judgment, and an understanding of how Ontario courts actually approach these matters. Both Sorkos v. Cowderoy, 2006 and Kacin v. Kacin, 2024 illustrates the complexity and the coherence of that framework.

The law has answers. Getting to them takes the right guidance.

Red Booth Law

Estate Litigation | Probate | Wills & Trusts

info@redboothlaw.com | 416 953 0040

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