All About Estates

Should you wait to bring a will challenge?

The Ontario Superior Court recently addressed the question of the limitation period applicable to a will challenge.[1] The challenge in this case was brought by the testatrix’s son. The testatrix, Eleanor, died on June 4, 2011. She left Primary and Secondary Wills executed on April 9, 2011 that left specific assets to her son, Blake, and divided the residue of her estate equally between Blake and her other son, Cody. Blake argued that his mother’s intention was to leave him her entire estate and on September 5, 2013, he brought an application for a declaration that the 2011 Wills were invalid.

The respondents argued that the general two-year limitation period set out in the Act applies to will challenges and that Blake’s application was therefore statute-barred under the Limitations Act, 2002 (the “Act”). They submitted that Blake had sufficient knowledge to commence the application prior to September 2011. Among other things, on June 28, 2011, Blake wrote Eleanor’s lawyer expressing concern with his mother’s choice of executors and requesting the names of reputable estate lawyers, which were subsequently provided to him. The court also found that Blake had received a copy of the Will by July 2011 and that he was familiar with Eleanor’s assets.

Justice Greer agreed with the respondents in finding that the claim was statute-barred under the Act. He acknowledged that s. 16(1)(a) of the Act states that no limitation period applies in respect of an application for a declaration where no consequential relief is sought. However, he found that Blake’s will challenge sought consequential relief in that it asked, among other things, for an Order removing the executors and requiring them to pass accounts. In arriving at this conclusion, Justice Greer noted that:

“To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would be to put all [executors] in peril of being sued at any time…”

In this case, Justice Greer found that Blake had sufficient knowledge to commence the application on the date of Eleanor’s death and the limitation period therefore began to run on that date. The decision suggests that the date of death is the date the act or omission giving rise to the challenge occurs, since a will becomes effective on death. This is significant as s. 5(2) of the Act deems the limitation period to begin on the date on which the act or omission giving rise to the proceedings occurs, absent evidence to the contrary.

The decision of Leibel v. Leibel is a wake-up call to those contemplating a will challenge but tempted to hit the snooze button. With so much occurring in the executor’s year, a two-year limitation period in will challenges, potentially beginning on the testator’s death, is a short time in which to bring an application.

Katie Ionson

[1] Leibel v. Leibel, 2014 ONSC 4516. The court also considered the issue of whether Blake was estopped from challenging the Will based on equitable doctrines. This blog does not discuss those aspects of the decision.

About Katie Ionson
Katie Ionson is an Associate at Fasken Wealth Management, Charities and Not-for-Profit Group. As part of her wealth management practice, Katie assists clients with Wills, powers of attorney, trusts, marriage and domestic contracts, and trust and estate administration. She has experience using estate planning to address a variety of client objectives, including income splitting arrangements, asset protection and business succession issues. Katie is engaged in a broad practice in the areas of charities and not-for-profit law, which includes preparing applications for charitable status, assisting clients with transitioning to the new federal or provincial not-for-profit legislation, drafting endowment and gift agreements and advising on administrative and tax-related issues. Email: