In Tocholke Estate v. MacDonald et al., 2026 ONSC 1706, the Superior Court of Justice offered a useful reminder that limitation periods in estate litigation are not always as rigid as they first appear. Justice Marc Smith dismissed a Rule 21.01(1)(a) motion to strike an estate trustee’s claim as statute-barred, and in doing so clarified how incapacity can suspend even the “hard” limitation period under the Trustee Act.
The Background
The deceased suffered from mental illness and dementia and lacked capacity to manage his affairs. According to the pleadings, a real estate agent and a lawyer, together with the eventual purchasers, arranged for him to sell two properties well below fair market value, with the profits later split after the properties were resold. The deceased died in January 2019. His estate trustee did not issue a claim until December 2023, after reviewing medical records that suggested the deceased may have lacked capacity to complete the transactions.
The Motion
The defendants moved under Rule 21.01(1)(a) to dismiss the action as statute-barred under section 38(3) of the Trustee Act, which imposes a two-year limitation period running from the date of death, or alternatively under section 4 of the Limitations Act, 2002. The plaintiff argued that the rule cannot be used to decide limitation issues where material facts remain in dispute, and that both fraudulent concealment and incapacity operated to suspend the limitation period.
Fraudulent Concealment
The Court accepted that the two-year period under section 38(3) is a “hard” limitation period triggered by death, to which the discoverability principle does not apply. The doctrine of fraudulent concealment can, in principle, suspend that period where it would be unconscionable for a defendant to rely on the limitation. However, Justice Smith agreed with the defendants that the relevant conduct must occur after death, because that is the event that triggers the limitation period. On the facts pleaded, the plaintiff had no contact with the defendants during the two years following the death, and no post-death concealment was alleged. Fraudulent concealment therefore could not save the claim.
Incapacity as the Deciding Factor
The claim survived on a different basis. Section 19 of the Limitations Act, 2002 provides that limitation periods in other statutes listed in its Schedule, including section 38(3) of the Trustee Act, are subject to section 7, which suspends limitation periods while a person is incapable of commencing a proceeding. Taking the pleaded facts at their highest, the Court found it was not plain and obvious that the deceased had capacity. Because a trier of fact could conclude the deceased lacked capacity to enter into the transactions, the limitation period under both the Trustee Act and the Limitations Act, 2002 could be suspended. The motion was accordingly dismissed.
Takeaways
The decision confirms three practical points. First, Rule 21.01(1)(a) remains a narrow tool for limitation issues and is generally unsuitable where material facts are contested. Second, fraudulent concealment in the estate context is assessed by reference to conduct after death, not during the deceased’s lifetime. Third, and most significantly, incapacity under section 7 can toll even the otherwise strict limitation period in section 38(3) of the Trustee Act, offering a potential avenue where a vulnerable deceased may have been taken advantage of before death.
Thanks for reading,
Li-Mei