Today’s blog was written by Rebecca Scantlebury, Principal Lawyer of Scantlebury Law
In Shannon v. Hrabovsky, 2024 ONCA 120, the Court of Appeal upheld a judgment that the Limitations Act, 2002’s two-year limitation period to challenge a will starts to run from when the disappointed beneficiary applicant obtains a copy of the will.
The question of whether will challenges fall under the standard two-year limitation period has long been a topic of consideration in lower courts[1]. Does the limitation clock start ticking at the date of death, upon discovering the existence of another will, or when there is knowledge of both the existence and content of another will? The Court of Appeal has finally spoken on the issue … well, sort of.
The reason I say sort of is because this appeal focused on the principles governing the admission of fresh evidence in civil appeals, rather than delving into the existing discussions in the law regarding limitation periods and will challenges. As a result, it can be argued that there remains room for debate about whether the limitations analysis was thoroughly examined. Do you believe this decision has provided sufficient clarity on the law, or are there still lingering gray areas? Let me know your thoughts.
Background
Decision of the Superior Court of Justice – Ontario[2]
In this case, the testator executed a will in 2006 benefitting both his son and daughter, followed by another will in 2007 that disinherited his daughter. When the testator died on November 15, 2014, the daughter did not receive a copy of the 2007 will until January 2015. The daughter commenced a will challenge on December 23, 2016, two years after the death of her father, but less than two years from the date that she received a copy of the 2007 will.
The Respondents opposed the will challenge on the basis that it was limitation-barred. Justice Wilton-Siegel ruled against this, asserting that the discoverability principle was applicable in this case. Specifically, he noted that on the testator’s date of death, the daughter lacked knowledge of the contents of the 2007 will. This ultimately rebutted the presumption under s. 5(2) of the Limitations Act, 2002, and triggered the operation of the discoverability principle. As a result, the limitation clock started to run when the daughter received a copy of the 2007 will.
Decision of the Court of Appeal for Ontario
On appeal, the appellants’ main argument was that the application judge should have found that the daughter’s application was statute-barred by the two-year limitations period in s. 4 of the Limitations Act, 2002. They also sought to introduce fresh evidence – a letter, dated December 16, 2014, revealing that the daughter was aware of the 2007 will’s existence more than two years before filing the will challenge. Therefore, the limitation period began running from the date the letter was sent. The appellants also argued that the daughter’s failure to present this letter during the initial application breached her duty of full and frank disclosure of all material facts.
The Court of Appeal refused to admit any new evidence, stating that (1) the appellants failed to act with reasonable diligence by not putting the letter into evidence before the lower court themselves, and (2) accepting new evidence was not likely to be conclusive of the limitations issue since the evidence still established that the daughter did not learn of the contents of the 2007 will until January 2015. The court also rejected the argument that the limitation clock started when the daughter’s counsel sent the letter asking to be provided a copy of the 2007 will, and stated that the clock started to run from the January 2015 deadline specified in the letter.
Interestingly, the Court of Appeal highlighted that despite section 5(1)(a) and (b) of the Limitations Act, 2002, and the daughter’s suspicions for several years that the document her father had mentioned was a will disinheriting her in favor of her brother, the court stated: “… it was open to the application judge to conclude that it would have been premature for [the daughter] to have started legal proceedings to challenge the 2007 Will until she received a copy of it and could examine its terms.”[3]
The Court of Appeal also referred to the Supreme Court of Canada’s decision in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, where it was emphasized that “… the degree of knowledge needed to discover a claim is more than mere suspicion or speculation.”
Bottom Line
In a will challenge dispute, the limitation period begins when the applicant obtains a copy of the will, providing them with knowledge of both the existence and contents of the will. Merely having knowledge or suspicions of another will may be insufficient to trigger the limitation clock.
[1] See Leibel v. Leibel, 2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420
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