In the recent decision of Tessaro v. Gora, 2025 ONSC 198, the Ontario Superior Court of Justice reaffirmed the paramount importance of statutory limitations in estate litigation, particularly in cases involving professional negligence in drafting wills. This decision underscores the potential challenges beneficiaries face when statutory timelines intersect with the inherently delayed nature of estate claims. The court’s analysis provides critical guidance on interpreting the Limitations Act, 2002, and its interplay with the Trustee Act in such cases.

This matter concerned claims by beneficiaries under the will of Leopold Ryczkowski, executed in 1991. The plaintiffs alleged that drafting errors in the will by the testator’s lawyer, resulted in an ambiguity that diminished their inheritances. Notably, the litigation revolved around whether the deceased’s nieces (the plaintiffs and children of a predeceased sister, Monica) were entitled to a share of the estate. Following the testator’s death on July 16, 2018, the plaintiffs pursued actions against the lawyer for negligence in 2020.

The defendant moved to dismiss the claims, invoking the 15-year ultimate limitation period under section 15(2) of the Limitations Act, which bars proceedings initiated more than 15 years after the act or omission giving rise to the claim. The court was tasked with determining whether the plaintiffs’ claims were barred despite the delayed discovery of the alleged negligence.

Justice Myers dismissed both actions, ruling that the ultimate limitation period began to run from the date of the alleged negligent act – when the will was drafted in 1991 – and not from the testator’s death in 2018. The period thus expired on January 1, 2019, fifteen years after the statute’s deemed start date of January 1, 2004 (per the transitional provisions in section 24(5) of the Limitations Act).

The court rejected arguments that the limitation period should commence upon the testator’s death. Justice Myers emphasized that statutory limitations prioritize finality and certainty, even if this leads to potentially unfair outcomes. While acknowledging the harshness of barring claims before beneficiaries could discover their injuries, the court maintained that altering this outcome was a legislative, not judicial, function.

Key Findings

• Statutory Interpretation and Policy: The court adhered to the principle that statutes are interpreted based on their text, context, and purpose. Section 15(2) of the Limitations Act was designed to prevent indefinite liability for historical acts, balancing the rights of plaintiffs to seek remedies against defendants’ need for closure. The court noted that while beneficiaries’ claims are uniquely delayed until a will comes into effect, the legislature deliberately omitted exceptions for such claims under the ultimate limitation period.
• Ultimate Limitation Period and Discoverability: The court clarified that section 15(1) excludes discoverability from the calculation of the ultimate limitation period. Regardless of when plaintiffs became aware of the negligence, the clock started ticking on the date of the negligent act. This approach aligns with the law’s goal of curbing the risk of stale claims and unreliable evidence.
• Trustee Act Inapplicability: The plaintiffs argued that section 38 of the Trustee Act provided an additional two years post-death to commence claims. The court dismissed this argument, holding that the claims were personal to the beneficiaries and did not belong to the estate.

Estate practitioners should advise clients to review and update their wills regularly, particularly if significant time has passed since drafting, to ensure testamentary intentions remain clear and current. Lawyers must draft wills with precision, using unambiguous language to prevent disputes that could arise and remain unresolved after the ultimate limitation period has expired, especially in complex familial scenarios. Additionally, practitioners should educate beneficiaries about the operation of limitation periods, emphasizing that their right to sue may expire long before the testator’s death if the limitation period begins at the time of the drafting lawyer’s alleged negligence.

In estate litigation, time waits for no one – even if the will does. Tessaro v. Gora serves as a sobering reminder of the unforgiving nature of statutory limitations in Ontario’s legal framework. While the decision upholds the principles of finality and certainty, it also exposes the practical and emotional toll on beneficiaries denied a remedy due to time constraints beyond their control. As estate practitioners, it is our prerogative to mitigate the toll through precision in drafting and vigilance in planning. 

Boris