October 10, 2014

Limitation periods generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely. Limitation periods also address the concern that it would be unfair for a person to defend him or herself against allegations when the passage of time would make it difficult, if not impossible, to gather the required evidence to support a defence.

In the estates context, there was a dirge of case law with respect to limitation periods under the former Limitation Act; as well, there is relatively recent Limitations Act[1] to consider, and exceptions for certain types of estate litigation proceedings.  Whether a Will challenge is subject to a limitation period under the new Limitations Act has been the subject of some debate, although the recent case of Leibel v. Leibel (discussed below) may have finally settled this issue.

Previously, several learned authors were of the view that no limitation period applied to Will challenges.[2]  Not even the absolute 15-year limitation period set out in the new Limitations Act was said to apply. This startling proposition seemed to fly in the face of the stated purpose of the new Limitations Act and the public policy underpinning it. The purpose of the new Limitations Act is to bring under one roof the myriad of limitation periods and impose an almost universal two-year limitation period on most types of claims (subject only to reasonable discoverability).

Thus, it wasn’t altogether unexpected that Justice Greer held in Leibel that a two-year limitation period begins running for will challenges from the testator’s date of death, subject to the discoverability principle. Contrary to previous cases based on the old Limitations Act, Justice Greer found that the new Limitation Act’s purpose is to protect estate trustees from situations where they are sued many years after the death of the testator when assets remain undistributed or can still be traced.

It seems unlikely that other courts will disagree with Justice Greer as to whether the two-year limitation period applies, subject only to certain well-known statutory exceptions such as fraudulent concealment.[3] Courts will likely continue to use the principle of reasonable discoverability to saddle a potential beneficiary with the knowledge that he or she has two years from the triggering event in which to challenge a Will. As with all limitation periods, the prudent course of action is to commence a Will challenge sooner rather than later.

To read more, see the full paper here.

[1] Limitations Act, S.O. 2002, Chapter 24, as amended.

[2] See for example Anne Werker’s article “Limitation Periods in Ontario and Claims by Beneficiaries,” (2008) 34 Advocates’ Q. 1; Schnurr’s Estate Litigation, 2nd ed., vol. 2, at section 22.4.

[3] Two decisions from 2010 also suggested that the two-year limitation period to bring forward Will challenges begins to run as soon as a certificate of appointment of estate trustee has been issued, but not before that time.  See Kenzie v. Kenzie (2010), 2010 ONSC 4360, 65 ETR (3d) 148, 2010 CarswellOnt 10219, and Sawdon Estate v. Watch Tower Bible & Tract Society of Canada (2010), 2010 ONSC 4066, 61 ETR (3d) 132, 2010 CarswellOnt 5922.