{"id":1041,"date":"2020-04-28T21:13:51","date_gmt":"2020-04-29T01:13:51","guid":{"rendered":"http:\/\/limitations.ca\/?p=1041"},"modified":"2020-04-28T21:23:40","modified_gmt":"2020-04-29T01:23:40","slug":"1041","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=1041","title":{"rendered":"Ontario: Court of Appeal holds no limitation period for applications for a declaration on a codicil’s validity"},"content":{"rendered":"

In Piekut v. Romoli<\/em><\/a>, the Court of Appeal held that no limitation period applies to an application for a declaration on the validity of a codicil.<\/p>\n

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)<\/a> of the Limitations Act.<\/p>\n

The court rejected the appellant\u2019s argument that the basic limitation period applied:<\/p>\n

\n

[<\/a>11]\u00a0\u00a0 \u00a0\u00a0\u00a0We do not accept this submission. Both\u00a0Leibel<\/em>\u00a0and\u00a0Birtzu<\/em>\u00a0are readily distinguishable from this appeal.<\/p>\n

\u00a0[<\/a>12]\u00a0\u00a0 \u00a0\u00a0\u00a0In\u00a0Leibel<\/em>, Greer J. acknowledged the potential application of s. 16(1)(a) of the\u00a0Limitations Act<\/em>, 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\u00a0Leibel<\/em>\u00a0the primary will of the deceased had been probated.\u00a0Birtzu<\/em>\u00a0had a similar fact pattern.<\/div>\n
\u00a0[<\/a>13]\u00a0\u00a0 \u00a0\u00a0\u00a0In 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 \u2013 to define the rights of the parties in order to avoid future disputes.<\/div>\n<\/blockquote>\n

As I wrote regarding the motion judge\u2019s decision, this is the correct outcome by the wrong reasoning.<\/p>\n

No limitation period applied to the proceeding because it didn\u2019t pursue a \u201cclaim\u201d. \u00a0The Limitations Act applies to \u201cclaims\u201d pursued in court proceeding (s. 2<\/a>).\u00a0 If there\u2019s no \u201cclaim\u201d, no limitation period applies.\u00a0 \u201cClaims\u201d derive from causes of action.\u00a0 If there\u2019s no cause of action, there\u2019s no \u201cclaim\u201d.<\/p>\n

There\u2019s no cause of action asserted in an application for a declaration regarding the validity of a codicil (or a will).\u00a0 Accordingly, the applicants were not pursuing a \u201cclaim\u201d in a court proceeding, and no limitation period applied to it.<\/p>\n

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.\u00a0\u00a0The confusion arises from misapprehending the universality of the basic limitation period.\u00a0 It is universal in that applies to all causes of action, not because it applies to every proceeding.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading Ontario: Court of Appeal holds no limitation period for applications for a declaration on a codicil’s validity<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[552,21,115,43,272,7],"class_list":["post-1041","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-codicils","tag-ontario-act-s-161a","tag-ontario-act-s-21a","tag-ontario-court-of-appeal","tag-will-challenges","tag-wills"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1041","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1041"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1041\/revisions"}],"predecessor-version":[{"id":1046,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1041\/revisions\/1046"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1041"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1041"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1041"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}