Will Challenges and Limitation Periods
When does the limitation period start running for a challenge to the validity of a Will? A recent decision at the Superior Court of Justice dealt with this very question and found that the limitation period may continue to run even after two years from the date of death of the testator.
In the decision of Shannon v Hrabovsky, 2018 ONSC 6593, the testator prepared a will in 2006 which he provided to his daughter following its execution. However, the testator subsequently executed a will in 2007 (the “2007 Will”) which essentially disinherited his daughter to the benefit of his son. The daughter was not provided with a copy of this will, but the daughter was aware that the testator attended a lawyer’s office in 2007 and signed something. The testator died on November 15, 2014 and the daughter was provided a copy of the 2007 Will in January 2015 when her brother and uncle applied for a Certificate of Appointment of Estate Trustee under the 2007 Will.
The daughter commenced a challenge to the validity of the Will on December 23, 2016. This claim was commenced more than two years after the testator’s date of death, but less than two years from when the daughter received a copy of the 2007 Will in January 2015. As a preliminary issue, Justice Wilton-Siegel determined the issue of whether the limitation period for bringing a challenge to the validity of the 2007 Will had expired.
In particular, Justice Wilton-Siegal examined the issue of whether the discoverability principle applies in the case of will challenges. Under the Limitations Act, 2002, SO 2002, c 24, sched B, a claim generally may not be commenced after the second anniversary of the day on which the claim is discovered. Section 5(1) of that act sets out that:
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Justice Wilton-Siegel referred to the decision in Leibel v Leibel, 2014 ONSC 4516 where the Court found that as a will speaks from the date of death, the limitation period begins running from the date of death. In Shannon v Hrabovsky, it appears that the respondents attempted to argue that the discoverability principle did not apply and that a will challenge can only be brought within two years of the date of death. Justice Wilton-Siegel found, however, that the discoverability principle continues to apply to will challenges and that Leibel v Leibel was not to be taken as meaning that such a principle did not apply.
In the circumstances of the case, Justice Wilton-Siegel found that the will challenge was not statute-barred as the daughter had not discovered the existence of the 2007 Will until she was provided with a copy in January 2015.
The circumstances of each case are unique and while some might be concerned that this case opens up potential claims against the validity of a Will long after a testator has passed away, it is important to remember that the Court will examine the discoverability principle with respect to whether a reasonable person ought to have discovered the claim.
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