In Ontario, a will challenge must be commenced in compliance with the Limitations Act, 2002 – failure to do so will bar a party with a financial interest in an estate from challenging a will. We’ve discussed the interplay between Will Challenges and Limitation Periods on our blog before: see, for example, Knowledge of a will’s existence not enough to start the limitation period for a will challenge, Court of Appeal rules.
A new case from British Columbia, Proudfoot v Bryant, 2025 BCSC 1437, demonstrates the consequences that could follow when a lawyer who is retained to commence a will challenge fails to do so within the applicable limitation period.
The Facts
The plaintiff in this case retained a lawyer to commence a wills variation action against his mother’s estate. The lawyer, however, failed to file the action before the limitation period expired. Because the plaintiff was barred from pursuing his claim against the estate, he sued both his lawyer and the law firm for the damages he would have received had the wills variation action been filed in time.
The defendants admitted that, in missing the limitation period, they had breached the standard of care.
Duties Owed to Clients in Contract and Tort
Justice Thomas held that the defendants owed a duty of care to the plaintiff in both contract and tort, in light of the retainer agreement entered into by the parties and the solicitor-client relationship.
Since the defendants had breached the retainer agreement by missing the limitation period, the plaintiff was entitled to damages for breach of contract. Even if the plaintiff failed to establish that he suffered damages due to the breach, the court noted that the plaintiff would still be entitled to nominal damages as compensation.
To succeed with the tort action, the court held that the plaintiff needed to establish both damages and causation related to the wills variation action. Even though the defendants had admitted that they breached the standard of care, it was still necessary to conduct a “trial within a trial” of the wills variation action to determine, on the balance of probabilities, whether the plaintiff would have succeeded at trial. If so, meaning causation was established, the next step would be conducting a loss of opportunity assessment to determine “the damages the plaintiff would have recovered at that trial, subject to appropriate contingencies.” Alternatively, if the plaintiff could not prove that he would have succeeded at trial, the tort claim would fail.
The “Trial Within a Trial”
The court examined the testator’s estate plan and her reasons for leaving the plaintiff a relatively modest inheritance. While the plaintiff and two of his brothers were each left $50,000 in their mother’s will, another brother named George inherited the residue, which was worth more than five times the plaintiff’s inheritance. A condominium also passed to George outside of the estate. The mother had left these gifts to George since he was the mother’s “greatest source of support and strength.”
The mother chose to leave smaller gifts to the plaintiff’s brothers because years earlier she had sold the family ranch at a discounted price to three of her sons, not including the plaintiff or George. The mother considered the discount, valued at approximately $135,000 each, part of her sons’ inheritance.
The plaintiff was the only son not to receive a significant inter vivos gift from the mother. The mother justified this in her will by stating that the plaintiff had been exceptionally successful, and was in less need than his brothers. While the evidence before the court established that the plaintiff was a retired businessman living abroad, with significant property holdings, the court also noted that he suffered significant losses shortly before the mother’s death. As a result, the plaintiff was “cash-poor,” although the court also noted that he remained land-rich as a result of his choices.
The plaintiff ultimately succeeded at the trial within a trial because he had a stronger moral claim on the mother’s estate than the two brothers who had already benefitted from the discounted ranch purchase. Justice Thomas noted that the assertion that the plaintiff had achieved substantial success did not provide objective and valid reasons to undermine his moral claim to an inheritance larger than that given to his brothers. Accordingly, Justice Thomas awarded the plaintiff an additional $115,000 inheritance, which was then reduced by $43,000 to account for the litigation costs that the plaintiff would have incurred in bringing the variation action. Ultimately, the net damages awarded against counsel were $72,000.
Key Takeaways for Ontario Practitioners
Notwithstanding the fact that Proudfoot v Bryant was decided in British Columbia, it is probable that a negligence claim arising from a missed limitation period would be handled similarly in Ontario. If a lawyer fails to commence a will challenge in time, counsel could be ordered to pay damages to the disappointed client if a trial within a trial establishes that the underlying claim would have been successful.
For estate litigators, the lesson is clear – once counsel is retained by a client, it is imperative that any claim the client has against an estate is filed before the limitation period expires. When dealing with a will challenge, the safest bet is to simply issue a claim within two years of the testator’s death.
Thank you for reading, and have a fantastic rest of your day,
Suzana.