In a recent blog, Suzana Popovic-Montag discussed the Court process to be followed when proving a lost or destroyed will in Ontario - both in situations where all those with a financial interest in the estate consent to the will being proven and in situations where those with a financial interest do not unanimously agree to the will being proven.
Where all persons with a financial interest in the estate consent to the will being proven, Rule 75.02 of the Rules of Civil Procedure sets out the process. In these circumstances, affidavit(s) are filed along with the consents and other application materials, and generally no court appearance is necessary. The Honourable Mr. Justice D. M. Brown’s brief decision in Re O’Reilly provides useful and specific direction regarding the form and content of an order that should be included with such a consent application. Mr. Justice Brown’s decision provides, as follows:
 My only purpose in writing this brief endorsement is to deal with the form of the order. Since the Rules of Civil Procedure do not prescribe the form for an order made under Rule 75.02, judges see a wide range of language submitted for proposed orders proving lost wills. In order to bring some uniformity to this type of application, I would ask applicants to submit draft orders using the language recommended several years ago by (now retired) Justice Haley. The draft order should read:
I declare that the Will of [insert name of deceased] dated [insert date of will] has been proved and that the copy of the Will adduced in evidence shall be admitted to probate as the last Will of [insert name of deceased] deceased, until such time as the original may be found.
I direct that, subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee with a Will for the Will of [insert name of deceased] dated [insert date of will] be issued to the applicant(s).
To this language should be added any other orders sought by the applicant, such as dispensing with service of the application, etc.
 Judges considering these applications are provided with a template endorsement using this language. Therefore, in order for an applicant to avoid the delays associated with submitting a draft with different language and then having to submit a revised order that tracks the language of the endorsement signed by the judge, the language I have set out above should be used in the draft order submitted with the application record.
The direction provided by Mr. Justice Brown in Re O’Reilly continues to govern practice in this area. Lawyers acting in applications to prove a lost will under Rule 75.02 are well advised to use the wording prescribed by Mr. Justice Brown in their draft orders, or face delays that may result from submitting a draft order with different language.
Thanks for reading,