Lost Will In Ontario: Rebutting The Presumption Of Revocation
April 23, 2026
BY: IAN ANDREW LAW
A missing original will is not just an inconvenience. In Ontario, it can trigger a presumption that the testator destroyed the will with the intention of revoking it.
That presumption is powerful, but it is not absolute. The real question is whether the evidence is strong enough to rebut it.
Key Takeaways
• A missing original can give rise to a presumption of revocation.
• The presumption does not arise or operate identically in every file.
• The court will look closely at possession, capacity, search efforts, and the broader evidentiary record.
• A copy may still be proved if the presumption is rebutted or does not apply.
• Lost-will cases turn on evidence, not assumption.
Why The Presumption Arises
If the original will was last known to be in the testator's possession and cannot be found after death, the court may presume that the testator destroyed it with the intention of revoking it. That is a common-law presumption designed to address an evidentiary gap.
But it is only a presumption. It yields to better evidence.
What Rebuts It
The court will consider the surrounding facts as a whole. Was the original actually in the testator's possession when it went missing? Did the testator still have capacity to revoke? Was there evidence of continued testamentary intention consistent with the copy? Was there a diligent search? Was the document more likely lost than deliberately destroyed?
Those questions matter because the burden is practical as much as legal: the court needs confidence that the missing original does not mean intentional revocation.
Why These Files Are Evidentiary Files First
Lost-will cases are rarely won by formal argument alone. They are built through searches, solicitor evidence, storage evidence, family evidence, drafting history, and proof that the copy accurately reflects the will the deceased intended to govern.
In Ontario, rebutting the presumption of revocation is often less about one dramatic fact and more about whether the whole record makes revocation less likely than loss.
Sources
• Sorkos v. Cowderoy, 2006 CanLII 31722 (ON CA), 215 O.A.C. 194.
• BMO Trust Company v. Cosgrove, 2021 ONSC 5681.
• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 75.02 and 75.06.
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.