In Ontario, most legal claims are subject to the basic two-year limitation period set out in Section 4 of the Limitations Act, 2002, SO 2002, c 24, Sch B (the “Limitations Act”). This basic limitation period requires legal claims to be brought within two years of the day on which the claim is first discovered. As set out in Section 5 of the Limitations Act, a claim is “discovered” on the day on which the claimant knew (or reasonably ought to have known) all of the following:
(i) that the injury, loss or damage had occurred;
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission;
(iii) that the act or omission was that of the person against whom the claim is made; and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.
Essentially, the basic two-year limitation period begins to run as soon as the claimant has knowledge of the material facts giving rise to the potential claim. The knowledge required to trigger the limitation period is more than mere suspicion, but is less than perfect knowledge. There is also a presumption that the claimant has knowledge of the material facts giving rise to a potential claim on the day on which the act or omission, on which the claim is based, took place (Section 5 (2) of the Limitations Act).
Like most legal claims in Ontario, will challenges are governed by the principles set out in Sections 4 and 5 of the Limitations Act. This means that will challenges must be brought within two years of the date that the claimant first discovers that they have a basis to challenge the will. The rationale for imposing a two-year limitation period on will challenges was described by Justice Greer in Leibel v Leibel: “To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would put all Estate Trustees in peril of being sued at any time. There is a reason why the Legislature replaced the six-year limitation in favour of a two-year limitation.”
Generally, because “a Will speaks from death,” there is a presumption that the two-year limitation period to commence a will challenge begins on the date of the testator’s death. However, this presumption may be rebutted if the claimant demonstrates that they did not have all the facts upon which to base the will challenge until sometime after the testator’s death.
Recently, in Shannon v Hrabovsky, the Ontario Court of Appeal suggested that the claimant must have knowledge not only of the existence of the will, but also of its contents. This would seemingly require that the claimant first receives a copy of the will. Arguably, it would be “premature” to commence a will challenge without having had the opportunity to review the terms of the will in question. For this reason, the Ontario Court of Appeal agreed that “it would not have been reasonable for [the applicant] to commence litigation to challenge the validity of a will that she had never seen, and that might not exist.”
Notwithstanding the Ontario Court of Appeal’s recent comments on limitation periods in the context of will challenges, it is always prudent to commence a will challenge posthaste following the death of the testator.
