All About Estates

Father Time: A Limitation Period Refresher

As the holiday season is upon us and the new year approaches, many of us are thinking about time. For those in the litigation world, time, and more specifically, limitation periods, should always be top of mind. This blog serves as a refresher for some of the limitation periods that apply to different estate-related issues.

Basic Limitation Period

It is well known that generally, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered, as set out in section 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”). The 2-year basic limitation period is subject to discoverability, which means that the limitation period does not start to run until the time that a person knows, or could have reasonably known, that the cause of action occurred. In particular, section 5(1) states:

A claim is discovered on the earlier of,

(a)   the day on which the person with the claim first knew,

(i)     that the injury, loss or damage had occurred,

(ii)   that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b)   the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Section 5(2) of the Limitations Act goes onto provide that a person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Will Challenge

As stated in Leibel v. Leibel, 2014 ONSC 4516, in respect of an application to challenge the validity of a will, the court has held that the 2-year basic limitation period applies. Moreover, the court in Leibel quoted Justice Brown in Lawless v. Anderson, 2010 ONSC 2723 (CanLII), who stated, “Limitation periods do not begin to run when one determines that a claim is winnable or viable; they begin to run when one discovers the material facts necessary to plead a reasonable cause of action.”

Dependant’s Relief

A dependant of an estate may bring an application under the Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) for support. Section 61 of the SLRA states that an application for dependant’s support is to be made within 6 months from the date of the issuance a certificate of appointment of estate trustee (probate). Notably, section 61(2) of the SLRA goes on to state that “The court, if it considers it proper, may allow an application to be made at any time as to any portion of the estate remaining undistributed at the date of the application.

Passing of Accounts Applications

In the well known Ontario Court of Appeal case of Armitage v. The Salvation Army, 2016 ONCA 971, it was held that an application to pass accounts by an estate trustee or attorney for property is not a “claim” within the meaning of the Limitations Act, as referred to above, and therefore the basic 2-year limitation period does not apply.

Relatedly, in 2018, the court in Wall v. Shaw, 2018 ONCA 929 (CanLII) considered limitation periods as they relate to notices of objection filed in accounting applications. Specifically, The court stated, “This appeal raises a narrow issue. It involves an application by an estate trustee to pass accounts, some of which pre-date the issuance of the application by more than two years. In response to this application, a beneficiary filed a notice of objection to accounts that included objections to the accounts pre-dating the issuance of the application by more than two years. After having applied to pass those accounts, can the estate trustee move to strike out the objections pertaining to them on the basis that they are barred by the basic two-year limitation period”.

The court held that by filing a notice of objection to accounts in response to an estate trustee’s application to pass accounts, a beneficiary is not commencing a proceeding in respect of a claim within the meaning of section 4 of the Limitations Act.

Certainly, there are many other estate litigation issues to which limitation periods apply; the above is only a small sampling of limitation periods to consider in the course of any given court proceeding.

As 2023 draws to a close, be sure to mark your calendars for the expiry of limitation periods in 2024, and beyond!

About Joanna Lindenberg
Joanna is an experienced estates, trusts, and capacity litigator at de VRIES LITIGATION LLP. Joanna obtained her law degree from the Shulich School of Law at Dalhousie University after completing a Bachelor of Arts degree at McGill University. Following her call to the Ontario Bar in June 2011, Joanna obtained a Masters of Law at the University of California Los Angeles (UCLA), specializing in international and comparative law. Joanna's current practice focuses on, in part, will challenges, dependant’s support, capacity, and power of attorney disputes. More of Joanna's blogs can be found at


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