Original Missing, Copy Found: What The Court Needs Before It Will Issue A Certificate
April 23, 2026
BY: IAN ANDREW LAW
Finding a copy of the will can feel like finding the solution. In reality, it is usually only the beginning.
If the original is missing, the court still needs enough evidence to be satisfied that the copy represents a valid will that should govern the estate. The certificate does not issue because a photocopy exists. It issues because the evidentiary burden is met.
Key Takeaways
• A copy helps, but it does not end the analysis.
• The court will look for evidence of execution, contents, loss, and non-revocation.
• Search efforts should be real and provable.
• The record should explain who had the original and what happened to it.
• These files succeed on evidence, not optimism.
What The Court Usually Wants
The court typically wants to know what the original will said, whether it was validly executed, where it was kept, who last had control of it, what search was conducted, and why the applicant says the missing original should not be treated as revoked. If the witnesses cannot be found, other evidence of due execution may be required.
A copy is useful only if the surrounding record makes it trustworthy.
Why Search Evidence Matters So Much
A casual statement that the original could not be found is rarely enough. The court wants to see that someone actually looked, where they looked, and what the result was. If the original may have been held by a lawyer, institution, or third party, that should be addressed directly.
Search evidence often becomes the practical bridge between the missing original and the copy the applicant wants the court to accept.
Think Of The Certificate As The End Of The Proof Process
Applicants sometimes treat the certificate as the start of the real fight. In copy-will files, the reverse is usually true. The real evidentiary work is what must happen before the certificate can safely issue.
When the original is missing, the question is not whether the court will make an exception. It is whether the record is strong enough that the court can confidently act.
Sources
• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 74, 75.02 and 75.06.
• Sorkos v. Cowderoy, 2006 CanLII 31722 (ON CA), 215 O.A.C. 194.
• BMO Trust Company v. Cosgrove, 2021 ONSC 5681.
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.