Hull & Hull LLP
By Mandana Niknejad
October 20th, 2025
Can a Photocopy of a Will Be Admitted for Probate if the Original is Lost?
In the recent decision of Gaynes v. Gaynes, the Ontario Superior Court of Justice held that a photocopy of a will could be admitted to probate, even though the original had been lost. Importantly, the court noted that the testator never had possession of the original well after its execution, which strongly rebutted the presumption of revocation. Indeed, the evidence appeared to be that the testator’ husband lost the original when he received it after she died.
Background:
A Missing Will and a Clear Testamentary Intent
The testator passed away on February 14, 2022, survived by her husband and two adult children. Her grandson was also named as a beneficiary under her will. The central issue before the court was whether a photocopy of the testator’s will could be admitted to probate when the original could not be located.
The application was brought by the testator’s son, who found a photocopy of the will while administering his father’s estate. Evidence showed that the testator’s lawyer had retained the original will in safekeeping and delivered it to the testator’s husband after her death. However, the original was never recovered.
Jurisdiction:
The court emphasized its inquisitorial role in probate matters.
It is the court’s duty to determine what document(s), if any, constitute the testator’s last will and testament. This includes verifying that the will was duly executed, the testator had testamentary capacity, and that they had knowledge and approval of the contents.
To determine whether the photocopy could be admitted, the court applied the “four-part legal test for admitting a lost will” and found that all four criteria were satisfied…
Since the original will had been in the husband’s possession following the testator’s death and there was no evidence it was intentionally destroyed, the photocopy was admitted to probate as the testator’s valid last will and testament.
