Limitation periods
In legal disputes, limitation periods set time limits within which claimants must commence actions against potential wrongdoers. Limitation periods provide certainty and finality for defendants, ensuring that claimants pursue their grievances in a timely manner rather than “sleep” on their rights.
Basic and ultimate limitation periods
Each province and territory in Canada has its own legislation setting out limitation periods. In Ontario, the Limitations Act sets a basic limitation period of two years from the date a claim is discovered. This means the clock starts ticking on the day a claimant knew or ought to have known that they had a claim – a concept referred to as the “discoverability principle.”
There are exceptions to the basic limitation period. For example, certain acts may be ongoing and extend beyond a two-year period, or a claim may not even be discovered for more than two years. To account for such situations, the legislation also establishes an ultimate limitation period of 15 years from the date the act occurred, regardless of when it was discovered.
Additionally, some claims are not subject to any limitation period, including certain claims for support under the Family Law Act and certain claims related tosexual assault. However, a discussion of those exceptions is beyond the scope of this article.
Limitation periods in estate litigation
One reason it is critical to engage a lawyer specializing in estate litigation is that estate law is a complex field that, in some cases, has its own limitation periods. Below is a brief chart outlining the limitation periods applicable to some of the most common claims in an estates context.
| Claim | Description | Limitation Period |
|---|---|---|
| Will Challenge | Claim that one or more testamentary documents is invalid and of no force or effect | Two years from the date of death, subject to the discoverability principle |
| Dependant Support | Claim by a dependant that the Deceased failed to make adequate provision for their proper support | Six months from the grant of a Certificate of Appointment of Estate Trustee (previously referred to as “probate”) |
| Election Pursuant to the Family Law Act | Election made by a surviving spouse to either take their share under the Deceased’s Will or on an intestacy, or to take their share of the division of net family property as if the marriage ended in separation or divorce | Six months from the date of death |
| Passing of Accounts | Trustee submits detailed financial records of their administration of a trust or estate for review and approval | No limitation period (the Ontario Court of Appeal has held that this is not a “claim” and is not subject to a limitation period[1]) |
| Estate Trustee Negligence | Claim for damages based on an estate trustee’s failure to act in the beneficiary’s best interest | Two years, subject to discoverability principle |
Claims against drafting lawyers
On occasion, beneficiaries sue lawyers for negligence, alleging that a poorly drafted will caused them to receive less than the deceased intended. These claims most often arise in the context of will challenges. In most cases, beneficiaries do not “discover” their claim until they read the will after the testator’s death.
A recent decision from the Ontario Superior Court of Justice[2] (the “Court”)held that the limitation period begins to run from the date of the allegedly negligent act – when the will is drafted – rather than from the testator’s death. In that case, the will was drafted in 1991, and the testator died 27 years later, in 2018. Despite the fact that the beneficiaries did not discover the claim until the testator’s death, the Court applied the ultimate limitation period of 15 years from the date of the will, and held that the beneficiaries’ claim against the drafting lawyer was statute-barred. In its decision, the Court emphasized the principles of finality and certainty, even when they lead to potentially unfair outcomes.
Ask the experts
It is important to remember that, just as there are limitation periods specific to estate law, there are also exceptions. Furthermore, there are defences that may be available to a defendant under certain circumstances. Parties are always best served by engaging a legal practitioner with expertise in estate law – one who is well-versed in the most recent jurisprudence – who can help navigate the often murky waters of estate litigation. The members of Miller Thomson’s Estates and Trusts Litigation Group are here to guide you through the process.
