Written on June 7, 2013 – 7:00 am | by Justin de Vries
Limitation periods generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely, or to answer for a wrong where it has become difficult, if not impossible, to assemble the evidence.
In the estates context, there is a dirge of case law both old and new, a relatively recent Limitations Act to consider, and exceptions for certain types of estate litigation proceedings. There has also been some controversy as to whether a will challenge is subject to a limitation period under the new Limitations Act.
Several learned authors are of the view that no limitation period applies to will challenges, not even the absolute 15-year limitation period set out in the Limitations Act applies (see for example Anne Werker’s article “Limitation Periods in Ontario and Claims by Beneficiaries,” (2008) 34 Advocates’ Q. 1). This startling proposition seems to fly in the face of the stated purpose of the Limitations Act, and the public policy underpinning it. The purpose of the Limitations Act was to bring under one roof the myriad of limitation periods and impose an almost universal two-year limitation period (subject only to reasonable discoverability). There is no reason to exclude estates issues from this commendable goal.
In this “learned” bloggers opinion, it is likely that an appeal court will, and ultimately should, decide that the two-year limitation period does apply, subject only to certain well-known exceptions such as fraudulent concealment. For example, the court could use the principle of reasonable discoverability to saddle a potential beneficiary with the knowledge that he/she has two years from the triggering event in which to challenge a will.
Interestingly, two decisions from 2010 suggest that the two-year limitation period to bring forward a will challenges begins to run as soon as a certificate of appointment of estate trustee has been issued, but not before that time. See Kenzie v. Kenzie (2010), 2010 ONSC 4360, 65 ETR (3d) 148, affirmed on appeal, and Sawdon Estate v. Watch Tower Bible & Tract Society of Canada. In neither case is the will challenge decided on the basis of the limitation period; it is only raised in obiter dicta (Latin for “said in passing”). Nevertheless, the courts suggest that the Limitations Act has a role to play in deciding will challenges.
In Sawdon Estate, the testator Arthur died in 2007, having executed his will the year before. Arthur’s will left gifts to each of his children and the residue of his estate to the Watch Tower Bible & Tract Society. A certificate of appointment of estate trustee with a will was issued in 2008, and the trustee began administering the estate, which included providing a bequest to Arthur’s son, Stephen. In 2010, Stephen brought a motion challenging the validity of the will when the Watch Tower Bible & Tract Society questioned Stephen’s entitlement to the proceeds of a joint bank account he held with his father.
The court rejected Stephen’s right to challenge the validity of the will on a number of grounds, including lack of evidence as to incapacity and the prejudice that would result to the parties if the work of the trustee had to be undone. The Court further commented that a limitations period argument may also have been appropriate in the circumstances: “While the Limitations Act was not argued, I have serious concerns a limitation period might apply given that the Certificate of Appointment was issued more than two years prior to Stephen Sawdon’s present challenge. In any event, … Stephen Sawdon would, at law, be estopped from challenging the October 2006 will at this time.”
Bottom line: as with all limitation periods, the prudent course of action is to commence a will challenge sooner rather than later.