Consented Vs. Non-Consented Lost Will Applications: Why The File Changes Completely
April 23, 2026
BY: IAN ANDREW LAW
Two lost-will files can look similar at first glance and then diverge sharply. In one, every interested person consents. In the other, someone objects or refuses to consent. That difference often changes the evidentiary burden, procedural intensity, cost, and time to resolution.
The law does not disappear in a consent case. But the reality of litigation is very different.
Key Takeaways
• Consent can streamline a lost-will file, but it does not eliminate the need for evidence.
• Non-consented files usually require a more robust record and more active case management.
• The revocation issue does not vanish just because everyone agrees.
• Where consent is absent, expect closer scrutiny of execution, contents, and loss.
• Procedural posture often changes the cost profile of the entire file.
What Consent Changes
If all financially interested parties consent, the court may have less reason to expect an adversarial fight over the facts. That can simplify service, reduce contest over evidence, and make the application more efficient.
But the court still needs a proper basis to admit a copy or prove a lost will.
What Non-Consent Changes
Once consent falls away, the file becomes much more like ordinary estates litigation. The applicant may need fuller affidavit evidence, cross-examinations, a tighter directions process, and possibly a more structured route toward solemn-form proof or another hearing process under Rule 75.
The absence of consent does not just add friction. It changes how carefully every fact must be proved.
Why The Difference Matters Strategically
Counsel should know early whether the file is really consensual or only temporarily quiet. In some matters, the key work is securing and documenting consent. In others, it is accepting quickly that the application will need to be built as a contested evidentiary record.
In lost-will litigation, consent affects far more than tone. It often determines what kind of file counsel actually has.
Sources
• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 39.01, 75.02 and 75.06.
• Sorkos v. Cowderoy, 2006 CanLII 31722 (ON CA), 215 O.A.C. 194.
This article is for general information purposes only and does not constitute legal advice. Reading this article does not create a solicitor-client relationship. If you require advice specific to your situation, contact my office.