{"id":870,"date":"2019-02-03T21:07:11","date_gmt":"2019-02-04T01:07:11","guid":{"rendered":"http:\/\/limitations.ca\/?p=870"},"modified":"2019-02-03T21:07:11","modified_gmt":"2019-02-04T01:07:11","slug":"ontario-the-limitation-of-will-challenges","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=870","title":{"rendered":"Ontario: the limitation of will challenges"},"content":{"rendered":"

The decision in Shannon v. Hrabovsky<\/em><\/a> follows Leibel<\/em> <\/a>for the principle that the Limitations Act<\/a> applies to will challenges:<\/p>\n

[<\/a>63]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As I understand the analysis in\u00a0Leibel v. Leibel,\u00a0<\/i>because a will is effective as of the date of death, section 5(2) creates a presumption that\u00a0<\/i>an applicant has knowledge of the contents of the will on such date. Given this presumption, an applicant with knowledge at the date of death of a will, and its contents, together with all other facts upon which a claim for lack of testamentary capacity would be based would therefore be fixed with all necessary knowledge as of that date.\u00a0 In such circumstances, the date on which such a claim would have been discovered for the purposes of section 5(1)(a) would be the date of death. The same principle would appear to operate with respect to any claim for undue influence.<\/p><\/blockquote>\n

I’ve given this issue quite a lot of consideration in the course of drafting a paper on the limitation of will challenges.\u00a0 In short, I don\u2019t think that it does.\u00a0 Statutory limitation periods have always applied to causes of action.\u00a0 A will challenge is not a cause of action.\u00a0 The Limitations Act applies to “claims”, not causes of action, but a “claim” is just a universalized cause of action that functions to simplify the accrual analysis and allow for a general basic and ultimate limitation period.\u00a0 If there’s no cause of action, there’s no “claim”.\u00a0 If there’s no “claim”, the Limitations Act doesn’t apply.\u00a0 Let me if know you\u2019d like a copy of the draft paper; I’m happy to provide it.<\/p>\n

The quotation above illustrates the problem.\u00a0 Section 5(2) creates a presumption that discovery occurs on the date of the “act or omission” giving rise to the claim.\u00a0 No act or omission necessarily occurs on the date of death.\u00a0 Indeed, there isn’t necessarily any act or omission at all in a will challenge.<\/p>\n

The fundamental flaw in Leibel<\/em>, and the jurisprudence that follows it, is to understand the Limitations Act as having expanded the scope of the statutory limitations scheme to include all court proceedings.\u00a0 This is wrong: the Limitations Act only expanded the scope of the limitations scheme to include all causes of action (the old Act applied to a closed list of causes of action, excluding some, like certain equitable causes of action, that were limited only by equity).<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

The decision in Shannon v. Hrabovsky follows Leibel for the principle that the Limitations Act applies to will challenges: [63]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0As I understand the analysis in\u00a0Leibel v. Leibel,\u00a0because a will is effective as of the date of death, section 5(2) creates a presumption that\u00a0an applicant has knowledge of the contents of the will … Continue reading Ontario: the limitation of will challenges<\/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":[466,6,272],"class_list":["post-870","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-claims-not-causes-of-action","tag-estates","tag-will-challenges"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/870","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=870"}],"version-history":[{"count":1,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/870\/revisions"}],"predecessor-version":[{"id":871,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/870\/revisions\/871"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=870"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=870"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=870"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}