For almost a decade, will challenges have been subject to the Limitations Act, 2002, SO 2002, c 24, Sch B – Justice Greer’s seminal decision in Liebel v. Liebel, 2014 ONSC 4516 made it clear that will challenges, like other types of litigation, are subject to a two-year limitation period.*
Now, almost a decade later, in Shannon v. Hrabovsky, 2024 ONCA 120, the Ontario Court of Appeal provides guidance as to how the discoverability principle in the Limitations Act applies to will challenges.
The testator in this case executed a will in 2006 that benefitted both his son and daughter, but then executed another will in 2007 that disinherited his daughter. The daughter did not receive a copy of the 2007 will until January 2015, several months after the testator died. She subsequently commenced a will challenge on December 23, 2016, more than two years following the testator’s death, but less than two years after she received a copy of the 2007 will.
Her will challenge was opposed on the basis that it was limitation-barred. In the lower court decision, reported at Shannon v. Hrabovsky, 2018 ONSC 6593, Justice Wilton-Siegel held that the limitation period for challenging the validity of the 2007 will did not expire before the claim was commenced in light of the discoverability principle. More specifically, he recognized that while subsection 5(2) of the Limitations Act creates a presumption that an applicant has knowledge of the contents of the testator’s will on the date of death, the discoverability principle will not be ousted if that presumption is rebutted. Accordingly, the daughter’s claim was not barred because the application judge found that the daughter did not have knowledge of the 2007 will and its contents until January 2015, less than two years before she commenced her challenge. For more on Justice Wilton-Siegel’s decision, see our original blog post about this case: Will Challenges and Limitation Periods.
On appeal, the beneficiaries argued that the will challenge was statute-barred and applied to put fresh evidence before the Court of Appeal – a letter which proved that the daughter was aware of the existence of the 2007 will more than two years before she filed her will challenge. In the letter, dated December 16, 2014, counsel retained by the daughter demanded disclosure of the 2007 will in light of a recent phone call between the daughter and the testator’s lawyer in which the lawyer advised that the testator had made a will in 2007. The letter from the daughter’s counsel also set a deadline for the disclosure of the 2007 will.
The Court of Appeal refused to admit the letter into evidence. Not only had the appellants failed to act with reasonable diligence in not putting the letter into evidence before the lower court, but the Court of Appeal also found that it was not likely to be conclusive of the limitations issue since the evidence still established that the daughter did not learn of the contents of the 2007 will until January 2015. The fact that the lower court found that the daughter did not learn of the will’s existence until January 2015, whereas the daughter actually learned of the will’s existence before December 16, 2014, was not an overriding error, and was not determinative of the limitation period.
In light of section 5 of the Limitations Act, which provides that a limitation period will not begin to run until the litigant ought to have known the nature of the loss suffered, the Court of Appeal recognized that “it was open to the application judge to conclude that it would have been premature for [the daughter] to have started legal proceedings to challenge the 2007 Will until she received a copy of it and could examine its terms.” On this point, the Court of Appeal also quoted the Supreme Court of Canada’s decision in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, where Justice Moldaver held that “the degree of knowledge needed to discover a claim is more than mere suspicion or speculation.”
The appellants also argued that, had the lower court known of the December 16, 2014 letter in which the daughter’s counsel demanded disclosure of the 2007 will, Justice Wilton-Siegel would have found that the limitation period began running on the date the letter was sent. However, the Court of Appeal disagreed, and held that the limitation clock would have instead began to run on the deadline set out in that letter. Since the daughter’s will challenge was commenced less than two years after that deadline, the claim was not statute-barred.
Not only does the Court of Appeal’s decision in Shannon confirm that the presumption of knowledge of a will upon death is subject to the discoverability principle under the Limitations Act, but it also confirms that knowledge of a will’s existence on its own is not enough to start the limitation clock for a will challenge.
Thank you for reading and have a great day!
* Please note that a 2-year limitation period does not apply to an application for a declaration regarding the validity of a testamentary instrument, as confirmed by the Ontario Court of Appeal in Piekut v. Romoli, 2020 ONCA 26.