{"id":12,"date":"2014-09-10T02:43:21","date_gmt":"2014-09-10T02:43:21","guid":{"rendered":"http:\/\/limitations.ca\/?p=12"},"modified":"2014-09-11T12:21:35","modified_gmt":"2014-09-11T16:21:35","slug":"in-ontario-will-challenges-are-subject-to-the-two-year-limitation-period","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=12","title":{"rendered":"Ontario: Will challenges subject to the two-year limitation period"},"content":{"rendered":"

The Superior Court has ruled on the application of the Limitations Act, 2002<\/em> <\/a>to will challenges. The general two-year limitation period in section 4<\/a> of the act applies, subject to the section 5 discovery provisions<\/a>.<\/p>\n

Leibel v. Leibel<\/em> <\/a>involved two wills. The wills left a specific asset to the testatrix\u2019s son Blake, and divided the remaining assets equally between Blake and her other son Cody. Blake applied for a declaration that the wills were invalid, and Cody and other respondents moved for an order dismissing the application on the basis that it was statute-barred by the expiry of the limitation period.<\/p>\n

Justice Greer held that limitation period began running in June 2011, the date of the testatrix\u2019s death , because a will speaks from death (see paras. 36 and 50). However, Just Greer found that Blake discovered his claim within the meaning of section 5 about a month later in July 2011:<\/p>\n

In applying the \u201cdiscoverability principle,\u201d Blake had the knowledge to commence a will challenge on or before July 31, 2011. By that date he knew the following facts:<\/p>\n

(a)\u00a0\u00a0 Prior to Eleanor\u2019s death Blake knew that Eleanor [the testatrix] had recovered from lung cancer but now had brain cancer.<\/p>\n

(b)\u00a0\u00a0 He knew Eleanor had changed her previous Wills.<\/p>\n

(c)\u00a0\u00a0 He knew the date of Eleanor\u2019s death, as Lorne had called him and Cody on that date.<\/p>\n

(d)\u00a0\u00a0 He received copies of the Wills prior to July 31, 2011, and he knew who the Estate Trustees were under the Wills.<\/p>\n

(e)\u00a0\u00a0 He knew what Eleanor\u2019s assets were. He had at least a sense of her income, as she had been sending him monthly cheques before the date of her death and had a sense of the value of her assets.<\/p>\n

(f)\u00a0\u00a0 He signed corporate documents for a company now owned by her Estate prior to July 31, 2011.<\/p>\n

(g)\u00a0\u00a0 He had communicated with Ms. Rintoul [a lawyer] about his concerns and she gave him the names of three estates counsel to consider, as independent legal advisors.<\/p>\n

Blake, therefore, had all of the information needed to begin a will challenge. He chose, instead, to take many of his benefits under the Wills before he commenced his Application (see para. 39).<\/p><\/blockquote>\n

By the time Blake brought his application in September 2013, the limitation period had expired.<\/p>\n

Justice Greer rejected Blake\u2019s argument that no limitation period applied to his will challenge pursuant to section 16(1)(a)<\/a> of the act because his challenge did not seek consequential relief. This is noteworthy. Prior to this decision, it was widely considered that this section would apply to a will challenge. Consider a passage from Anne Werker\u2019s<\/a> influential 2008 article on limitation periods in estate actions:<\/p>\n

It has been suggested that the 15-year absolute limitation period applies to will challenges. I do not agree. Section 16(1)(a) of the new Act expressly states that there is no limitation period in respect of “a proceeding for a declaration if no consequential relief is sought”.<\/p><\/blockquote>\n

In particular, it was thought that where a distribution had not been undertaken before the will challenge, no consequential relief would be necessary and so no limitation period would apply. (See Anne Werker, “Limitation Periods in Ontario and Claims by Beneficiaries”, (2008) 34:1 Advocates’ Q at 24-28).<\/p>\n

Justice Greer held that the legislature did not intend for section 16(1)(a) to exclude will challenges from the two-year limitation period:<\/p>\n

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. (See para. 52).<\/p><\/blockquote>\n

In any event, Justice Greer found that the order Blake sought did ask for consequential relief:<\/p>\n

\n

Although subsection 16 (1) (a) of the Act says there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought, Blake\u2019s will challenge claims consequential relief in that it asks for an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will issued to Roslyn and Lorne, asks for an Order removing them as Estate Trustees, asks for an Order that they pass their accounts as Estate Trustees, and for an Order appointing an Estate Trustee During Litigation.\u00a0 In addition, Blake asks for declarations relating to the revocation of Eleanor\u2019s December 12, 2008 Wills and for an Order in damages in negligence against Ms. Rintoul and her law firm, and for Orders disclosing Eleanor\u2019s medical records and her legal records.\u00a0 Consequential relief is clearly sought by Blake (see para. 28).<\/p>\n<\/blockquote>\n

This decision should have a significant impact on how the estates bar approaches will challenges, and it will be interesting to see whether there is an appeal. Meanwhile, it\u2019s likely that it will influence estates jurisprudence in other jurisdictions with limitations provisions equivalent to section 16(1)(a), for example section 2(1)(d<\/a>) of the BC Limitation Act<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Superior Court has ruled on the application of the Limitations Act, 2002 to will challenges. The general two-year limitation period in section 4 of the act applies, subject to the section 5 discovery provisions. Leibel v. Leibel involved two wills. The wills left a specific asset to the testatrix\u2019s son Blake, and divided the … Continue reading Ontario: Will challenges subject to the two-year limitation period<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5,4],"tags":[20,8,9,6,24,21,22,23,7],"class_list":["post-12","post","type-post","status-publish","format-standard","hentry","category-british-columbia","category-ontario","tag-bc-act-s-21d","tag-declarations","tag-discovery","tag-estates","tag-ontario-act","tag-ontario-act-s-161a","tag-ontario-act-s-4","tag-ontario-act-s-5","tag-wills"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/12","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=12"}],"version-history":[{"count":10,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/12\/revisions"}],"predecessor-version":[{"id":58,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/12\/revisions\/58"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}