When the Succession Law Reform Act (the “SLRA”) was amended in 2021, one of the most significant changes to the legislation was the addition of section 21.1, which empowers the Superior Court of Justice to validate testamentary instruments which are not properly executed or made in compliance with the SLRA. While there is a growing body of case law interpreting section 21.1, one issue yet to be addressed is when an application to validate a non-compliant instrument must be made, and whether such an application is subject to the Limitations Act, 2002.
At first glance, it may appear that an application to cure a non-compliant instrument is declaratory relief and is,therefore, not subject to a limitation period as per subsection 16(1) of the Limitations Act. When the Ontario Court of Appeal interpreted subsection 16(1) in Piekut v. Romoli, 2020 ONCA 26, the Court held that an application to establish the validity, or lack of validity, of a testamentary instrument is declaratory relief and therefore was not statute-barred. Arguably, this logic could also be applied to applications under subsection 21.1(1) of the SLRA, as the role of the court is to confirm whether or not a non-compliant instrument may be validated.
However, it could also be argued that an application to cure a non-compliant will seeks consequential relief, as the instrument requires a court order to make it “valid and fully effective as the will of the deceased … as if it had been properly executed or made”. In this way, an application under subsection 21.1(1) is arguably distinguishable from an application to confirm the validity of a properly executed will or codicil – without a court order, a non-compliant instrument cannot be submitted to probate. If this argument carries the day and curing a deficient instrument is considered consequential relief, an application under section 21.1 may be subject to a limitation period.
While the law remains unclear, a recent discussion of declaratory versus remedial judgments under the Limitations Act in Kyle v. Atwill, 2020 ONCA 476 implies that an order curing a deficient instrument is declaratory relief. The Ontario Court of Appeal observed in this case that “[a] declaratory judgment is a ‘formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs – it is restricted to a declaration of the parties’ rights and does not order any party to do anything[.]’” Since an application under subsection 21.1(1) does not seek a substantive remedy against another party, it makes sense that it would be characterized as declaratory relief, and thereby not subject to a limitation period.
If an application to validate a non-compliant testamentary instrument is made as part of a will challenge, however,the will challenge would almost certainly be subject to a limitation period in light of past cases like Shannon v. Hrabovsky, 2018 ONSC 6593, where Ontario courts have confirmed that will challenges are subject to the Limitations Act. An application for relief under subsection 21.1(1) would not extend the limitation period for a will challenge, even if that application is not subject to a limitation period. Returning to the Court of Appeal’s decision in Kyle, Justice Feldman put it succinctly – “different limitation periods may govern different claims in the same action.” Accordingly, it could be the case that no limitation period would be applicable to a declaration as to the validity of a non-compliant will, but proceedings to challenge another will executed by the same person in the same action would still be subject to a limitation period and could even be statute-barred.
Should this issue arise in litigation, it will be interesting to see how the Ontario courts interpret the potential applicability of subsection 16(1) of the Limitations Act to an application under subsection 21.1(1) of the SLRA.
Have a great day!