The Limitations Act, 2002: How Does it Apply to Will Challenges?

Rights don’t last forever. Under the Limitations Act, 2002, the basic limitation period is set at two years. The basic limitation period catches many types of claims, which cannot be started after the second anniversary of the day on which the claim was discovered.

The Act does carve out some exceptions to the basic period. One exception, and the subject of this post, is that no limitation period applies to a claim for a declaration without any consequential relief.

In many cases, a declaration would be the same thing as no result at all. For example, it would be a pointless indulgence (and probably an abuse of process) for the victim of a personal injury to bring a claim after the basic limitation period expired just for the satisfaction of a declaration that the wrongdoer was at fault.

However, a declaration can be a powerful remedy in the context of wills and estates. For example, if the court declares a Will to be invalid and an older Will to be valid instead, then entirely different beneficiaries could inherit the estate. As long as the assets of the estate have not yet been distributed, then the court does not need to make an order that a party make a payment; i.e. consequential relief. The estate trustee will be bound to comply with the state of affairs declared by the court and follow the terms of the older Will.

Some authors have suggested that the basic limitation period does not apply to Will challenges (see Anne Werker, “Limitation Periods in Ontario and Claims by Beneficiaries” (2008) 34:1 Advocates’ Q; and Archie Rabinowitz, “Limitation Periods in Estate Litigation”, Practice Gems: The Administration of Estates 2012; September 13, 2012) However, it seems that the court has never squarely considered the question. That may be about to change.

In Lund v. Rossiter, 2012 ONSC 6777, the estate trustee told a beneficiary that certain assets formed part of the estate and provided him with an accounting. More than two years after the deceased died and after he received the accounting, the beneficiary complained that the will was invalid and that he should have inherited the assets by right of survivorship. The beneficiary claimed that he was asking for declaratory relief; the estate trustee took the position that the beneficiary was really asking for a consequential order that the estate trustee remedy a breach of her fiduciary duty.

A decision in this case may provide some certainty about the applicability of the Act to Will challenges and the distinction between declaratory and consequential relief. Unfortunately, the court needed the parties to address the issue in more detail and adjourned the matter. We hope that this case will return and shed some light on this interesting question.

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