This blog has been written by JOSEPH STONEHOUSE, litigation associate at Fasken LLP (Toronto)

In a recent decision, Justice Myers of the Superior Court of Justice dismissed claims by beneficiaries under a will against the drafter because those claims were brought more than 15 years after the defendant drafted the will.

The court determined that, despite the perceived unfairness, the legislative intent behind the Limitations Act necessitated striking the plaintiffs’ claims. The 15-year ultimate limitation period began to run when the lawyer drafted the will. And the words of the statute and the legislative intent did not provide an exemption applicable to the plaintiffs’ circumstances.

This decision underscores the need for regular reviews of estate plans to ensure they reflect the testator’s intentions and safeguard beneficiaries’ right to sue potentially negligent estate advisors.

Facts

Mr. Ryczkowski passed away on July 16, 2018.

On November 6, 1991, he signed a will drafted by the defendant lawyer. Mr. Ryczkowski had three sisters, two of whom survived him, while the third predeceased him, leaving two daughters.

The will was ambiguous regarding whether the daughters of the deceased sister were to inherit in her place, thereby sharing the estate with the surviving sisters. Some parts of the will suggested that only the surviving sisters were entitled to a share. Others implied that the deceased sister’s daughters should inherit her share.

History of Proceedings

On June 11, 2019, the surviving sisters filed an application to interpret the will and determine their nieces’ entitlement. On December 24, 2020, the nieces sued the lawyer for negligence. The surviving sisters commenced a similar action five days later. The court never resolved the will’s interpretation, as the plaintiffs settled the application in June 2024.

Without a judicial determination, the plaintiffs claimed that the lawyer’s negligence caused them to receive less than intended by the deceased.

Issue

The key issue was whether the 15-year ultimate limitation period barred the plaintiffs’ actions against the defendant.[1]

The court had to determine whether s. 15(2) barred the plaintiffs’ claims because the act or omission on which the claim was based occurred more than 15 years before the action commenced, even though the beneficiaries had no cause of action until the testator’s death. The question was whether “the day on which the act or omission on which the claim is based” referred to either:

• the day the lawyer negligently drafted the will (November 6, 1991); or,
• the day the will came into effect (July 16, 2018).

The parties agreed that the transitional provision in s. 24(5) of the Limitations Act applied, such that the 15-year ultimate limitation period began to run on January 1, 2004.

Statutory Interpretation

In deciding between these interpretations, Justice Myers explained that the court’s goal is to implement the legislature’s intent by reading the words of the statute, focusing on their grammatical and ordinary sense, within the context of the entire statute to ensure the words serve the purpose of the statute and the intention of the legislature.[2]

Purpose of the 15-Year Ultimate Limitation Period

Justice Myers determined that the legislature had balanced competing policy goals in setting an ultimate limitation period.[3] In passing the Limitations Act, the Legislature aimed to accomplish the following:

• establish a fair limitation process based on discoverability;
• define exceptions that extend or eliminate limitation periods; and
• adopt an ultimate limitations period to protect against indeterminate liability.[4]

The 15-year ultimate limitation period sought to balance plaintiffs’ need for sufficient time to commence legal proceedings with defendants’ need for certainty that claims would be barred after a fixed period.[5] The legislature also acknowledged the risk of plaintiffs losing their right to sue before acquiring the right to do so.[6] Justice Myers found this allocation of risk accords with the purpose of s. 15(2)—it protects people from being sued long after the allegedly wrongful acts occurred.[7]

The plaintiffs invited the court to balance policy priorities. But Justice Myers declined. He  emphasized that his role was to interpret the statute and apply the legislature’s policy decision as expressed in the statute. Policy-making is the domain of elected representatives, not judges.[8]

Decision—The 15-Year Ultimate Limitation Period Runs When a Lawyer Drafts a Will

The decision in Tessaro found that the ultimate 15-year limitation period begins when the acts or omissions on which the claims are based occurred. There was no room to read into it an exception for beneficiaries who could not have discovered the basis for their claim until after the 15-year ultimate limitation period expired. In this case, the lawyer’s allegedly negligent drafting occurred on November 6, 1991. The limitation period expired on January 1, 2019. The claims were commenced in December 2020. And the court struck the plaintiffs’ claims. [9]

Conclusion

Beneficiaries may lose the right to sue for a negligently drafted will if the lawyer’s actions occurred more than 15 years before the testator’s death.

Individuals should review their wills every few years  to ensure they reflect current intentions, changes in circumstances (e.g. acquisition or sale of property, change in marital status of the testator or a beneficiary, etc.) and to protect beneficiaries’ rights.

[1] Tessarao v. Gora, 2025 ONSC 198 (”Tessaro”), at para. 35.

[2] Tessaro, at paras. 37-38.

[3] Tessaro, at para. 58.

[4] Tessaro, at para. 49.

[5] Tessaro, at para. 50, citing Attorney General of the day David Young, speaking to the Legislature.

[6] Tessaro, at para. 54, citing Hansard.

[7] Tessaro, at para. 80.

[8] Tessaro, at paras. 95-97.

[9] Tessaro, at paras. 79-80.