Last week, Suzana’s blog explored whether an application to validate a non-compliant will under section 21.1 of the Succession Law Reform Act (the “SLRA”) ought to be characterized as declaratory relief or consequential relief: see Will an application to validate a non-compliant will be subject to a limitation period?. As noted in that post, this distinction is determinative of whether an application to cure a non-compliant will is subject to a limitation period under the Limitations Act, 2002.
While it is currently unclear whether an application under section 21.1 of the SLRA will besubject to a limitation period in Ontario, the law appears to be similarly unclear across Canada. In other provinces where a non-compliant will can also be cured by the courts, the issue of when such relief must be sought and whether an application to validate a non-compliant will is subject to a limitation period has not been addressed in the case law to date, with the exception of British Columbia.
In B.C., the issue of when an application to cure a non-compliant will must be brought was addressed for the first time last year in Chou (Re), 2022 BCSC 783. In this case, the respondents argued that an application to cure the deceased’s non-compliant will under section 58 of the Wills, Estates and Succession Act was statute barred since it was commenced more than two years after the applicant first provided notice of the non-compliant will to the respondents. Despite the applicant’s delay, the court allowed the application to proceed in light of previous steps taken in the litigation. Because the applicant applied for a grant of probate for the non-compliant will before bringing the application to cure the instrument, the court held that the limitation period for applying to cure the will did not begin to run until the respondents filed their notice of dispute in reply to the probate application. Since the application to cure the non-compliant will was brought within the limitation period, the court allowed the application to proceed and went on to cure the non-compliant will.
The Court’s decision in Chou demonstrates that sometimes determining the applicable limitation period in wills and estates litigation is more complex than simply determining whether an application was brought within two years:
- of the death of the deceased,
- of when an instrument was discovered, or even
- of when the applicant provided notice of the instrument to the other parties.
Depending on the circumstances, the applicable limitation period may be affected by other steps taken in the litigation.
As section 21.1 is interpreted in more cases, it will be interesting to see whether an application to validate a non-compliant will is caught by subsection 16(1) of the Limitations Act and, if not, how the Ontario courts will determine when the applicable limitation period begins to run.
Thank you for reading, and have a great day!