Court File and Parties

Date: October 6, 2025

Ontario

Superior Court of Justice

(Estates List)

In the Matter of the Estate of Marlene Claire Gaynes, deceased

Between: Michael Thomas Gaynes, personally and as the executor of the Estate of Marlene Claire Gaynes

Applicant

And:

Robert Paul Gaynes and Dylan Thomas Gaynes

Respondents

Before: Justice A.A. Sanfilippo

Counsel:

• Peter Neufeld, for the Applicant
• Robert Paul Gaynes, Self-represented Respondent
• Dylan Thomas Gaynes, Self-represented Respondent

Heard: September 26, 2025

Endorsement

[1] The Applicant, Michael Thomas Gaynes, brought this Application for a declaration to prove the last will and testament dated June 23, 2010 (the "Will") of Marlene Claire Gaynes, deceased (the "Deceased"). The Respondents, Robert Paul Gaynes and Dylan Thomas Gaynes, consented to the relief sought by the Applicant. After hearing submissions, I granted the orders sought by the Applicant on the basis of reasons to follow. These are the reasons.

I. The Evidence

[2] This Application was supported by the affidavit of the Applicant, Michael Gaynes, sworn September 19, 2025, and by the affidavit of Gregory McConnell affirmed September 22, 2025. This evidence is uncontested and unchallenged, and corroborated by the documents exhibited to the affidavits. I accept this evidence as credible and reliable.

[3] Marlene Claire Gaynes died on February 14, 2022. The Deceased was survived by her husband, Donald William Gaynes, and by her two adult children, Michael Gaynes and the Respondent, Robert Paul Gaynes. The Respondent, Dylan Thomas Gaynes, is the Deceased's adult grandson and is a person interested in the Deceased's estate because he is named in the Will.

[4] For brevity and clarity, I will refer to the family members by their first names, respectfully, considering that they share the surname, Gaynes.

[5] Mr. McConnell deposed that he is a lawyer and acted for the Deceased on June 23, 2010, in the preparation and execution of the Will. Mr. McConnell swore that he, along with his legal assistant, Melissa Dopson, witnessed the Deceased's execution of the Will. Mr. McConnell retained the original Will for safekeeping.

[6] Mr. McConnell swore that after the Deceased's death on February 14, 2022, he wrote a letter on March 8, 2022, to the Deceased's husband, Donald, and enclosed the original Will. Mr. McConnell thereby retained the original Will from its execution by the Deceased on June 23, 2010, until delivery to Donald on March 8, 2022.

[7] Michael deposed that Donald died on August 19, 2022, and that during the administration of Donald's estate, he discovered that certain investments remained in the Deceased's name, requiring probate. Michael searched for the Deceased's last will and testament and found a photocopy of the Will, which he exhibited to his affidavit. Michael deposed that he thoroughly inspected the Deceased's residence and was unable to locate the original Will.

II. Analysis

[8] The Court's jurisdiction in probate is inquisitorial. As the Court of Appeal instructed in Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 68, the Court acting in probate has an obligation to ascertain and pronounce what documents constitute the testator's last will and may thereby be admitted to probate, as part of the responsibility to the testator who cannot be present to voice their intentions. "Proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity, and that the testator had knowledge and approval of the contents of the will": Neuberger, at para. 77.

[9] Rules 9.01(2)(a) and 75.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, codify the requirement that all persons having a financial interest in the estate be notified of the Application to prove the validity of a will. Here, the Applicant established that this Application is on notice to all beneficiaries under the Will and on notice to any person who might have a financial interest in the Deceased's estate on an intestacy in accordance with the principles of intestate succession set out in Part II of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the "SDA").

[10] The question is whether the copy of the Will should be admitted to probate in the absence of the original Will, which is lost. This engages r. 75.02 which provides as follows:

75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application,

(a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or

(b) in the manner provided by the court in an order giving directions made under rule 75.06.

[11] In Sorkos v. Cowderoy, (2006) 26 E.T.R. (3d) 108 (Ont. C.A.), at para. 8, the Court of Appeal instructed that to prove a lost will, the Applicant must demonstrate the following:

(a) Due execution of the Will;

(b) Particulars tracing possession of the Will to the date of death, and afterwards if the Will was lost after death;

(c) Rebuttal of the presumption that the Will was destroyed by the testator with the intention of revoking it; and

(d) Proof of the contents of the lost Will.

[12] In reviewing the Will, I find that it meets the formal requirements of ss. 3, 4 and 7 of the SDA. The Will is in writing, it is signed by the testator with two attesting witnesses who were present at the time of execution, and it is validly executed by the testator. The Applicant showed that the copy of the original Will sets out the entirety of the contents of the Will. Considering Mr. McConnell's evidence, I find that the Deceased approved the Will.

[13] This Application focussed on the whether the Applicant rebutted the presumption that a lost will that was formerly in the possession of the testator has been destroyed by the testator with the intention of revoking the will, as set out by the Supreme Court of Canada in Lefebvre v. Major, [1930] S.C.R. 252, at p. 257. The Applicant bears the burden of rebutting this presumption of revocation on a balance of probabilities: Sorkos, at para. 10; Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253, 36 E.T.R. (4th) 48, at paras. 12-15; Salvation Army in Canada v. Coles-Lecuyer, 2012 ONSC 3124, at paras. 49-52.

[14] The Supreme Court instructed that in determining whether a lost will has been destroyed by the testator with the intention to revoke the lost will, the court may consider "the character of the testator and his relation to the beneficiaries, the contents of the instrument, and the possibility of its loss being accounted for otherwise than by intentional destruction on the part of the testator": Lefebvre, at p. 257. In Levitz, at para. 15, Ryan Bell J. held that to rebut the presumption that the testator destroyed the lost will, the Applicant "must demonstrate either (i) that the Will was not destroyed; or (ii) that there was no intention by [the deceased] to revoke the Will."

[15] The presumption of revocation is rebutted on the admissible evidence in this case because the drafter and a witness of the Deceased's execution of the Will, Mr. McConnell, swore that he retained possession of the original Will until he delivered the original Will to the Deceased's husband after her death. The Deceased did not have the original Will in her possession and could not have destroyed the original Will for the purpose of revocation. The loss of the Will thereby occurred while it was in the possession of Donald, not the Deceased. Further, there is no evidence that the Deceased executed any other last will and testament after executing the Will on June 23, 2010.

[16] Had it been necessary to analyse further considerations to determine whether the presumption of revocation had been rebutted, I would have found, on a balance of probabilities, that the contents of the Will and the Deceased's relation to the beneficiaries would have supported a finding that the presumption had been rebutted. The Will is a mirror of the will that Mr. McConnell prepared for Donald. Both wills include the respective estate passing to the spouse and, in the event of the spouse's death prior to the death of the testator, a gift to Dylan and the residue of the estate passing to Michael and Robert in equal shares. Mr. McConnell witnessed Donald's execution of Donald's will on the same day that he witnessed the Deceased's execution of the Will.

[17] For these reasons, I find that the Deceased did not revoke the Will, and that the Will is the valid and effective Will of the Deceased. Based on these findings, and the consent of all persons who have a financial interest in the Deceased's estate, an Order shall issue that the Will is the valid last will and testament of the Deceased and shall be admitted to probate.

[18] Last, on the issue of costs, the Applicant submitted that he does not seek any costs of this Application from the Respondents. An order shall issue accordingly.

III. Disposition

[19] For these reasons, I order:

(a) The last will and testament of Marlene Claire Gaynes, dated June 23, 2010, which shall be attached to the Order as a Schedule, is the valid last will and testament of the deceased, Marlene Claire Gaynes.

(b) The last will and testament of Marlene Claire Gaynes, dated June 23, 2010, has been proved and shall be admitted to probate as the last will and testament of Marlene Claire Gaynes.

(c) Subject to the filing of the appropriate documents with the Court, a Certificate of Appointment of Estate Trustee for the Will of Marlene Claire Gaynes, dated June 23, 2010 shall be issued to the Applicant, Michael Thomas Gaynes.

(d) There shall be no costs of this Application as against the Respondents.

IV. Formal Order

[20] This endorsement and the orders contained in it shall have the immediate effect of a court order without the necessity of the issuance and entry of a formal order. Nonetheless, any party may take out a formal order by filing a draft order on the Case Center bundle for this hearing (002), and forwarding a copy, in PDF and Word format, to the Court Registrar and the Estates List Trial Coordinator, to be brought to my attention.

Justice A.A. Sanfilippo

Date: October 6, 2025