In Piekut v. Romoli, the Court of Appeal held that no limitation period applies to an application for a declaration on the validity of a codicil.
The motion judge held that such an application is a proceeding for a declaration without consequential relief and therefore free from limitation pursuant to s. 16(1)(a) of the Limitations Act.
The court rejected the appellant’s argument that the basic limitation period applied:
[11] We do not accept this submission. Both Leibel and Birtzu are readily distinguishable from this appeal.
[12] In Leibel, Greer J. acknowledged the potential application of s. 16(1)(a) of the Limitations Act, but held that it did not apply because the applicants had clearly sought consequential relief in addition to a determination of the validity of the will. This consequential relief included: an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will; an Order removing the Estate Trustees; an Order that the Estate Trustees pass their accounts; an Order appointing an Estate Trustee During Litigation; and an Order for damages in negligence against the drafting solicitor and her law firm. In addition, in Leibel the primary will of the deceased had been probated. Birtzu had a similar fact pattern.[13] In contrast, in this case Helen sought none of this consequential relief. Nor has anyone done anything to propound the will. It sat there for seven years, presumably because the siblings were all trying to work out their disagreements. In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes.
As I wrote regarding the motion judge’s decision, this is the correct outcome by the wrong reasoning.
No limitation period applied to the proceeding because it didn’t pursue a “claim”. The Limitations Act applies to “claims” pursued in court proceeding (s. 2). If there’s no “claim”, no limitation period applies. “Claims” derive from causes of action. If there’s no cause of action, there’s no “claim”.
There’s no cause of action asserted in an application for a declaration regarding the validity of a codicil (or a will). Accordingly, the applicants were not pursuing a “claim” in a court proceeding, and no limitation period applied to it.
Statutory limitation periods have always applied to causes of action, which is why there was no suggestion that they applied to will challenges under the former scheme. The confusion arises from misapprehending the universality of the basic limitation period. It is universal in that applies to all causes of action, not because it applies to every proceeding.
