What Must Be In The Affidavit For A Lost Or Destroyed Will Application?
April 23, 2026
BY: IAN ANDREW LAW
A lost-will application is usually decided on the affidavit record. The legal theory may be straightforward enough. The difficulty is proving the facts needed to support it.
That is why the supporting affidavit cannot be treated as a formality. It is often the core evidentiary document on the file.
Key Takeaways
• The affidavit is the foundation of a lost-will application.
• It should address existence, contents, execution, loss, search efforts, and non-revocation.
• Consents help, but they do not replace evidence.
• The court needs enough detail to understand why the copy should be admitted.
• Thin or conclusory affidavits create avoidable risk.
What The Court Usually Needs To See
The affidavit should identify the deceased, the deponent's interest, the testamentary document being relied on, and the evidence available to prove its execution and contents. If a copy exists, it should normally be exhibited. If the original is missing, the affidavit should explain how that is known and what search efforts were made.
It should also address the revocation problem directly rather than hoping the court will not notice it.
Why Detail Matters
General statements that the will was lost, that a search was conducted, or that the deceased would not have revoked it are usually weaker than specific facts. Who had the original? Where was it kept? Who searched? What was found? What contemporaneous evidence supports continued intention? Which interested parties consent, and who does not?
The court is not looking for drama. It is looking for proof.
Think Of The Affidavit As The Case Theory
A good lost-will affidavit does more than recite facts. It organizes the evidence around the legal issues: execution, authenticity, contents, loss, and non-revocation. That makes the file easier for the court to trust and easier for the applicant to defend.
In lost-will applications, the affidavit is not just support for the motion. It is often the application's real engine.
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.
• 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.