Article Written by: Ashley Thornton, Articling Student at Gowling WLG

Recent decisions from the Ontario Superior Court of Justice and the Ontario Court of Appeal have shed light on when limitation periods begin to run in the context of different types of estate litigation. From professional negligence by estate lawyers, to the discoverability of testamentary documents, and the appropriate limitation periods for unjust enrichment claims against an estate, these rulings provide both clarity and caution.

Tessaro v Gora, 2025 ONSC 198

This case comprises two actions in which beneficiaries under a poorly drafted will sued the drafting lawyer. The beneficiaries allege that the negligent drafting caused them to inherit less from the estate than the deceased had intended. The claimants were the two surviving sisters of the deceased, while the third sister predeceased the testator. The will had not been updated since her passing, and it remained unclear whether the deceased sister’s children who inherit her share of the estate, or whether the testator’s two remaining sisters who each inherit 50% of his estate. However, the viability of this action hinged on when the limitation period was deemed to have begun – either on November 6th, 1991, the date in which the will was drafted, or July 16^th, 2018, the date of the testator’s death.

The beneficiaries argued that the limitation period only began in 2018 when the testator passed, which would mean that they were still in the prescribed timeframe to bring forward their case. They further posited that a finding of an earlier start to the limitation period would essentially “penalize responsible individuals who obtain a will while they are young”.[i]  In contrast, the Defendant states that the limitation period began when the will was drafted, as this is when the “act or omission on which the claim in based took place”.[ii] The Defendant contends that the appropriate limitation period is 2004, given s. 24(5) of the Limitations Act which states:

1. 24(5) If the former limitation period did not expire before January 1, 2004, and if a limitation period under this Act would apply were the claim based on an act or omission that took place on or after that date, the following rules apply:
2. If the claim was not discovered before January 1, 2004, this Act applies as if the act or omission had taken place on that date.[iii]

Ultimately, the court deemed that the limitation period began in 2004, and thus the action was dismissed as it was brought after the 15-year ultimate limitation period set out in s.15(2) of the Limitations Act had expired.

This case serves as a cautionary tale to both estate lawyers and clients alike about the viability of claims arising from a will. Lawyers should encourage clients to review their wills at least once every 5 to 10 years to ensure their wishes remain accurate and up-to-date, as well as to ensure that any future claims a beneficiary may have are not dismissed merely due to the expiry of a procedural limitation period.[iv]

Shannon v Hrabovsky, 2024 ONCA 120

In Shannon v Hrabovsky, one of the testator’s children (Gayle) challenged the validity of the deceased’s most recent will, which largely disinherits her, on the grounds the testator lacked capacity at the time of its creation. The testator’s son (Glenn) appealed the decision, largely relying on the fact that the will was created in 2007, and the testator passed in 2014, meaning that the action was statute-barred as more than 2 years had passed.[v] In contrast, Gayle argues that she had only discovered the claim in January 2015 when she was given a copy of the will, and thus the limitation period did not run until then. Gayle commenced her action before what she viewed as the expiry of the limitation period in January 2017. Accordingly, the court was tasked with determining whether the two-year limitation period begins when a claimant learns of a will’s existence, or when they obtain knowledge of the contents of this will. The Court of Appeal upheld the trial judge’s decision, which found that Gayle did not discover the claim until becoming aware of the will’s contents after the testator’s passing. Accordingly, the action was not statute-barred.

Ingram v Kulynych Estate, 2024 ONCA 678

Lastly, the case of Ingram v Kulynych Estate shed light onto the limitation periods for unjust enrichment claims against an estate. Mr. Kulynych passed away in 2017, leaving nothing in his will to Ms. Ingram, who claims she had a common law relationship with the deceased from 1999 until his death. She asserts that she cared for him emotionally, financially, and assisted him medically until his passing. However, Ms. Ingram did not bring a claim for dependent’s support under the Succession and Law Reform Act, as well as an equitable trust claim for a portion of the estate until 2021. Thus, this viability of her claim hinges on which limitation period applies: either the 2-year limitation period under the Trustee Act,[vi] or the 10-year limitation period under the Real Property Limitations Act (“RPLA”).[vii]

Ms. Ingram argues that there was no policy reason to distinguish the applicable limitation periods for inter vivos equitable trust claims and estate equitable trust claims. Further, she alleges that equitable trust claims do not constitute a “wrong” of the deceased and should not fall under the 2-year limitation period imposed by the Trustee Act. While the trial judge agreed with this reasoning, this decision was reversed at the Ontario Court of Appeal. The ONCA focused on the legislative intent of s. 38(3) of the Trustee Act, which imposes a strict timeline for claim in which the discoverability principle does not apply. The purpose of this shorter to limitation period is to promote the “duty of estate trustees to administer estates promptly and diligently, including ascertaining the estate’s liabilities and debts as quickly as possible, as the expeditious administration of estates is in the interests of justice”.[viii] The ONCA held that an unjust enrichment claim can appropriately be construed as a “wrong” that falls under the scope of the Trustee Act as it constitutes a deprivation of benefits to property or finances comprising part of the deceased’s estate. It is clear from the statutory intent of the legislation that equitable trust claims against an estate fall within the purview of the Trustee Act and its corresponding limitation period. If the court were to find that a longer limitation period applied, such as the 10-year limitation period in the RPLA, it would subject estates to prolong financial vulnerability and prevent the timely distribution of assets to entitled beneficiaries.

Conclusion

At first glance, Shannon v Hrabovsky appears to directly conflict with the conclusion of the court in Tessaro v Gora. However, this discrepancy can be easily reconciled by considering the different applications of both the 2-year limitation period and the ultimate 15-year limitation period. In Tessaro, the claim was statute-barred as the judge interpreted the “act or omission” to be the lawyer’s negligent drafting. The discoverability principle in Shannon, with respect to the limitation period only beginning upon learning about the contents of the negligently drafted will, would still apply in Tessaro. However, by the time the claim was discovered, the ultimate limitation period had already expired. This meant that while the two-year limitation period had not begun until the claimants’ discovery of the claim, the action was still statute-barred as the 15-year limitation period had expired. Ingram v Kulynych Estate provides further clarification on the timeline for unjust enrichment claims against the estate, pointing to the fact that statutory interpretation serves as a useful tool in estate litigation when determining what limitation period should apply in each case.

These recent decisions underscore the critical importance of understanding when limitation periods begin in various estate litigation contexts.  Estate lawyers and potential litigants alike must navigate these nuanced timelines carefully to avoid procedural bars to otherwise valid claims. These cases reinforce that limitation periods are highly context-specific, and a failure to bring to act within the correct timeframe can be fatal to a claim.

[i] Tessaro v Gora, 2025 ONSC 198 at para 95.

[ii] Limitations Act, 2002, SO 2002, c. 24, Sch. B, s. 15(2).

[iii] Limitations Act, 2002, SO 2002, c. 24, Sch. B, s. 24(5).

[iv] Tessaro v Gora, 2025 ONSC 198 at para 95.

[v] Shannon v Hrabovsky, 2024 ONCA 120 at para 7.

[vi] Trustee Act, RSO 1990, T. 23, s. 38(3).

[vii] Real Property Limitations Act, RSO 1990, c L.15, s. 4.

[viii] Ingram v Kulynych Estate, 2024 ONCA 678 at para 27.