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Limitation Periods and Will Challenges

When does the limitation period begin to run in a will challenge case?  This was the question that faced the court in the recent decision of Leibel v. Leibel (2014 Ont. Sup. Ct.).  In Leibel, the deceased’s son sought to challenge the validity of his mother’s will after her death, commencing his application just over two years from the date of death.

The court considered Section 5(1) of the Limitations Act, 2002 (the “Act”), which establishes a basic limitation period of two years as follows:

“Unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

The son maintained that the above section did not apply to will challenges.  He relied upon section 16(1)(a) of the Act which states that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought.  In other words, the son claimed that he was simply seeking a declaration regarding the validity of the will and was therefore not statute barred by virtue of section 16.

The court rejected the son’s argument and ruled that the two year limitation period ran from the date of the mother’s death.  Significantly, the court found that the son knew of his mother’s death, knew of the terms of her will and knew of the factual circumstances he sought to rely upon to establish the invalidity—all well within the two year limitation period.  There was therefore no issue as to the “discoverability” of the claim.

The court further rejected the son’s position that no consequential relief was sought since the son did seek various orders which were found to be in the form of a request for such relief.

In terms of lessons learned from this case, beneficiaries should note the importance of diarizing two years from the date of death as the limitation period.  It may also be worthwhile for estate trustees to trigger the running of the limitation period by providing a copy of the will to anyone who may have an interest in contesting the will.  Of course, legal advice should be sought from an estate lawyer prior to engaging in any such strategic actions.

Thanks for reading,