Fraudulent Concealment

September 26, 2016 Ian Hull Beneficiary Designations, Estate & Trust, Estate Planning, Executors and Trustees, Litigation, Trustees, Wills Tags: , , , , , , , 0 Comments

Pursuant to section 4 of the Limitations Act, generally, a claim should be started by an individual within two years of the claim being discovered. Section 5 of the Limitations Act, defines discovery as “the day on which a reasonable person with the abilities and in the circumstance of the person with the claim first ought to have known of the matters referred to.”

Beneficiary Fraudulent Concealment
“What if an individual was unaware that they were named as a beneficiary of an estlocked-out-beneficiaryate?”

These provisions raise an interesting estates question:  What if an individual was unaware that they were named as a beneficiary of an estate? Would the Limitations Act apply in these circumstances, even though the beneficiary was unaware of their claim?

The doctrine of fraudulent concealment may operate to provide for an equitable tolling of the limitation period. Simply put, this means that discoverability is a factor in considering fraudulent concealment for estates purposes. The doctrine will suspend the running of the limitation clock until the reasonable party can reasonably discover the cause of action.

As stated in Roulsten v McKenny et al, 2016 ONSC 2377 para 41, and as established in Giroux Estate v Trillium Health Centre, 2005 CanLII 1488 (ON CA),  “the purpose underlying the doctrine of fraudulent concealment is to prevent defendants who stand in a special relationship with a party from using a limitation provision as an instrument of fraud”. A special relationship can be defined as one in which the plaintiff may rely on the defendant’s word and defendant ought to reasonably foresee that the plaintiff would rely on his representation.

As defined in the case of KM v HM, [1992] 3 SCR 6, at para 65, “‘Fraud’, for the purposes of fraudulent concealment, is defined as “conduct which having regard to some special relationship between the two parties concerned, is an unconscionable thing for one to do towards the other.”

As established through the existing jurisprudence, in order to make out the doctrine of fraudulent concealment, there are three necessary elements:

  • the defendant and the plaintiff are engaged in a special relationship with one another;
  • the defendant’s conduct is unconscionable; and
  • the defendant conceals the plaintiff’s right of action

As stated above, if an individual was unaware that they were the beneficiary of an estate, and a named estate trustee actively concealed the fact, it is possible that the remedy of fraudulent concealment provision would apply. It appears the provision will not apply if you knew or ought to have known that you were a beneficiary of an estate.

Thanks for reading,

Ian M. Hull

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