Tag: limitation period

21 Jan

Limitation Periods and Special Circumstances: Discoverability under the Trustee Act

Garrett Horrocks Executors and Trustees, Health / Medical, Litigation, Trustees Tags: , , , 0 Comments

Section 38 of Ontario’s Trustee Act provides that an estate trustee may commence or maintain, on behalf of a Deceased individual, an action in tort that could otherwise have been commenced by that individual.  As discussed in related blogs on this section, such actions are ordinarily subject to a stricter limitation period than that of other civil claims.

In typical civil claims, Ontario’s Limitations Act imports a two-year limitation period which begins to run as of the date the cause of action was discovered.  The limitation period under the Trustee Act, however, begins to run as of the Deceased’s date of death and is not subject to this principle of discoverability, unless the Plaintiff can satisfy the Doctrine of Special Circumstances.  The decision in Graham Estate v Southlake Regional Health Centre recently contextualized this Doctrine and, in so doing, suggests that the principle of discoverability will not always be dispensed with.

The Facts

In May 2008, the Deceased in Graham Estate underwent a botched surgical procedure that ultimately gave rise to a claim in medical negligence.  The Deceased subsequently died in February 2009, and a claim was commenced by the Deceased’s Estate in May 2010, well within the two-year limitation period under section 38(3).

As part of this initial claim, the Estate obtained disclosure of relevant medical records relating to the operation.  In or about 2015, more than four years after the limitation period had expired, counsel for the Estate subsequently received an additional unprompted cache of records that had not been previously disclosed.  This new set of records gave rise to a claim against a party who was not a party to the existing litigation.

In February 2017, the Estate subsequently brought a motion seeking to add the Proposed Defendant as a party to the litigation.  At issue in this decision was whether the Estate was out of time as a result of the strict operation of section 38(3) of the Trustee Act.  The Court ultimately held that the Estate ought to succeed on the basis of the Doctrine of Special Circumstances.

Special Circumstances

As the claim against the Proposed Defendant was, on its face, out of time, the Estate argued that the Doctrine of Special Circumstances ought to apply.  This Doctrine is comprised of a two-step test to be satisfied by the Plaintiff:

  1. The Plaintiff must rebut the presumption of prejudice that would result to the party to be added; and
  2. The Plaintiff must satisfy the Court that special circumstances justify the addition of that party.

At the outset, the Court held that the loss of a limitation defence immediately gave rise to a presumption of prejudice in favour of the Proposed Defendant.  However, the Estate identified a number of factors that operated to rebut the presumption of prejudice, notably:

  1. The claims to be made against the Proposed Defendant were identical to those already commenced against the existing Defendants;
  2. The action against the Proposed Defendant was tenable in law; and
  3. There would be no procedural unfairness to the Proposed Defendant if he were added as a party, as no trial date had been set and he would have sufficient time to prepare a defence.

The Court then considered whether there were any equitable special circumstances that merited the addition of the Proposed Defendant as a party.  As above, the Court held that there were, but in so doing, in effect considered factors not unlike the discoverability principle.

Chiefly, the Court noted that the Proposed Defendant’s role in the circumstances giving rise to the initial negligence claim had not become apparent until the limitation period had already expired.  The Court found that the Estate had made efforts to obtained the relevant records well within the limitation period, and that the records implicating the Proposed Defendant had erroneously been omitted.  The Court held that this was not a case in which the Estate was “handicapped by its own inaction.”

While section 38(3) of the Trustee Act on its face imports a strict limitation period, the Graham Estate decision nonetheless suggests that the courts will consider discoverability, among other factors.  That said, this analysis is only engaged if the presumption of prejudice is rebutted.

Thanks for reading.

Garrett Horrocks

27 Dec

Can Limitation Periods be Extended for Estate Trustees?

Rebecca Rauws Litigation Tags: , , , , , , , , , , 0 Comments

A recent decision of the Ontario Court of Appeal considered whether s. 7 of the Limitations Act, 2002 applies to extend the time within which an estate trustee can bring a claim that arose prior to a deceased person’s death.

Section 7 of the Limitations Act, 2002 provides as follows:

Incapable persons

7 (1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim.

Presumption

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.  2002, c. 24, Sched. B, s. 7 (2).

Extension

(3) If the running of a limitation period is postponed or suspended under this section and the period has less than six months to run when the postponement or suspension ends, the period is extended to include the day that is six months after the day on which the postponement or suspension ends.

In Lee v Ponte, 2018 ONCA 1021, the estate trustee of the deceased person commenced a claim more than 2 years after the date on which the limitation period began to run, as determined by the trial judge. As a result, the action was statute barred.

The estate trustee appealed, taking the position that section 7 of the Limitations Act, 2002 should be “liberally construed”. The estate trustee argued that a deceased person is incapable of commencing a proceeding because of “his or her physical, mental or psychological condition”. He also argued that policy reasons support allowing additional time for an estate trustee or litigation guardian to be appointed and take over the management of the affairs of the incapable/deceased person.

The Court of Appeal disagreed and did not allow the appeal. In its view, the “grammatical and ordinary sense of the words of s. 7 are simply not elastic enough to apply to a deceased person and to construe an estate trustee to be a litigation guardian.”

Although the outcome is not surprising, it does serve as a reminder that limitation periods can be unforgiving. Estate trustees would be well-advised to act swiftly in reviewing the affairs of a deceased person in order to determine whether any claims may have arisen prior to death, and whether the expiry of any limitation periods are looming.

Thanks for reading,

Rebecca Rauws

 

Other blog posts that may be of interest:

11 Dec

Hull on Estates #561 – The Question of a Limitation Period in a Will Challenge

76admin Estate & Trust, Hull on Estates, Litigation, Podcasts Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Kira Domratchev discuss the decision in Shannon v Hrabovsky, 2018 ONSC 6593, and the question of a limitation period in a Will challenge.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Kira Domratchev.

22 Nov

The Limits of Limitation Periods: Passings of Accounts in Wall v Shaw

Garrett Horrocks Executors and Trustees, Litigation, Passing of Accounts, Power of Attorney, Trustees Tags: , , , 0 Comments

Applications to pass accounts are unique as civil proceedings go.  The nature of the inquiries being made by the Court, the relief that a judge is empowered to grant, and the procedural considerations that apply are all features that distinguish applications to pass accounts from other civil applications.  Procedural considerations in particular have garnered some notoriety recently as a result of several notable decisions released in the past few years.  The recent decision of the Court of Appeal for Ontario (then sitting as the Divisional Court) in Wall v Shaw, 2018 ONCA 929, provides some clarity to a few of the loose ends.

In Wall, the Deceased died leaving a Will naming the appellant as estate trustee and which created two testamentary trusts for the benefit of her two children.  The Deceased’s nieces and nephews were also named as contingent beneficiaries in the event that both children died before vesting in the trust property.

The estate trustee acted for more than 10 years, but never formally passed his accounts.  Instead, the estate trustee held frequent informal meetings with the Deceased’s children to review the administration of the estate and to discuss the estate trustee’s compensation.

A dispute between the Deceased’s daughter and the estate trustee relating to the latter’s compensation eventually led the daughter to bring an application seeking an order compelling the estate trustee to pass his accounts.

The estate trustee subsequently commenced an application to pass accounts in March 2015.  In June 2015, the Deceased’s daughter filed a notice of objection to the accounts, followed in January 2016 by a notice of objection delivered by two of the Deceased’s nieces.

In response, the estate trustee brought a motion seeking to strike out the objections of the daughter on several grounds.  Notably, the estate trustee took the position that the daughter’s approval of the accounts at the informal meetings constituted acquiescence of the estate trustee’s conduct.  In the alternative, the estate trustee argued that the daughter’s objections were now statute-barred pursuant to sections 4 and 5 of Ontario’s Limitations Act or barred by the doctrine of laches.

The estate trustee was unsuccessful at first instance on all three grounds, but only chose to appeal the first ground.  Specifically, the estate trustee argued on appeal that the judge at first instance had erred in refusing to apply the two-year limitation period under section 4 of the Limitations Act.  The appeal was dismissed, and the reasons on appeal provide some procedural clarity in respect of the interplay between limitation periods and passings of accounts.

Section 4 of the Limitations Act generally provides that a “proceeding” cannot be commenced in respect of a “claim” if more than two years have elapsed since the date the claim was discovered.  The Court of Appeal took issue with each of the quoted terms.

Notably, the held that a notice of objection does not commence a “proceeding” for the purposes of section 4 of the Limitations Act.  Rather, a notice of objection ought to be viewed as a response to a proceeding that has already been commenced, being the application to pass accounts.  The Court also pointed to its prior ruling in Armitage v The Salvation Army, in which it was held that an application to pass accounts was not a “claim” pursuant to section 4 of the Limitations Act.  Accordingly, it followed that a responding objection raised in that application could also not constitute a claim.

Finally, the Court highlighted an important distinction between applications to pass accounts and other civil applications.  Unlike a traditional civil claim, the Court in an application to pass accounts is not tasked with awarding judgment in favour of one party or the other.  The purpose of an application to pass accounts to is initiate a “judicial inquiry” into the management of an estate and, if appropriate, provide redress to the estate, rather than to the beneficiaries personally.

Thanks for reading.

Garrett Horrocks

Please feel free to check our other blogs on related topics:

When Does an Attorney for Property Lose the Right to Claim Compensation?

Who Can Compel a Passing of Accounts From an Attorney for Property?

13 Nov

Will Challenges and Limitation Periods

Sayuri Kagami Litigation, Wills Tags: , , , 0 Comments

When does the limitation period start running for a challenge to the validity of a Will? A recent decision at the Superior Court of Justice dealt with this very question and found that the limitation period may continue to run even after two years from the date of death of the testator.

In the decision of Shannon v Hrabovsky,  2018 ONSC 6593, the testator prepared a will in 2006 which he provided to his daughter following its execution. However, the testator subsequently executed a will in 2007 (the “2007 Will”) which essentially disinherited his daughter to the benefit of his son. The daughter was not provided with a copy of this will, but the daughter was aware that the testator attended a lawyer’s office in 2007 and signed something. The testator died on November 15, 2014 and the daughter was provided a copy of the 2007 Will in January 2015 when her brother and uncle applied for a Certificate of Appointment of Estate Trustee under the 2007 Will.

The daughter commenced a challenge to the validity of the Will on December 23, 2016. This claim was commenced more than two years after the testator’s date of death, but less than two years from when the daughter received a copy of the 2007 Will in January 2015. As a preliminary issue, Justice Wilton-Siegel determined the issue of whether the limitation period for bringing a challenge to the validity of the 2007 Will had expired.

In particular, Justice Wilton-Siegal examined the issue of whether the discoverability principle applies in the case of will challenges. Under the Limitations Act, 2002, SO 2002, c 24, sched B,  a claim generally may not be commenced after the second anniversary of the day on which the claim is discovered. Section 5(1) of that act sets out that:

5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Justice Wilton-Siegel referred to the decision in Leibel v Leibel, 2014 ONSC 4516 where the Court found that as a will speaks from the date of death, the limitation period begins running from the date of death. In Shannon v Hrabovsky, it appears that the respondents attempted to argue that the discoverability principle did not apply and that a will challenge can only be brought within two years of the date of death. Justice Wilton-Siegel found, however, that the discoverability principle continues to apply to will challenges and that Leibel v Leibel was not to be taken as meaning that such a principle did not apply.

In the circumstances of the case, Justice Wilton-Siegel found that the will challenge was not statute-barred as the daughter had not discovered the existence of the 2007 Will until she was provided with a copy in January 2015.

The circumstances of each case are unique and while some might be concerned that this case opens up potential claims against the validity of a Will long after a testator has passed away, it is important to remember that the Court will examine the discoverability principle with respect to whether a reasonable person ought to have discovered the claim.

Thanks for reading!

Sayuri Kagami

20 Feb

Hull on Estates #540 – Constructive Trusts

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , 0 Comments

In today’s podcast, Natalia Angelini and Doreen So discuss the case of MacDonald v. Estate of James Pouliout, 2017 ONSC 3629, which was an interesting decision on constructive trusts, the limitation period applicable to dependants relief, and vesting pursuant to section 9 of Estate Administration Act.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

03 Aug

Dependant Support Claims, Limitation Periods and Life Interest Beneficiaries

Umair Estate Planning, Executors and Trustees, Litigation, Support After Death, Trustees Tags: , , , , 0 Comments

We have previously blogged about the limitation period that applies to applications for dependant’s relief under Part V of the Succession Law Reform Act, and the circumstances in which the Court will extend the limitation period.

In the recent decision of Habberfield v Sciamonte, 2017 ONSC 4332, the Court was asked to consider whether an application for support by a beneficiary with a life interest in a testamentary trust was statute-barred.

The Law Regarding Limitation Periods and Dependant Support Claims

Section 61(1) of the Succession Law Reform Act (the “SLRA”) provides that an application for dependant’s support must be made within six months from the issuance of probate.

An application may be made beyond the six-month limitation period, with leave. Section 61(2) of the SLRA provides the Court with discretion, if it considers it proper, to allow an application to be made by a dependant “at any time with respect to any portion of the estate remaining undistributed at the date of the application”.

Generally, case law has interpreted s. 61(2) to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed. Paul Trudelle previously blogged on this application of s. 61(2).

The Facts

In Habberfield, the Applicant (“Joan”) claimed that she was the long-time common law spouse of the Deceased. The Deceased died on April 11, 2012. Probate was granted on October 30, 2012. Joan’s application was heard on June 30, 2017, more than five years after the Deceased’s death.

At the time of the application, the assets of the Deceased’s Estate had an approximate value of $2,000,000.00. The assets primarily consisted of the Deceased’s home and an adjacent rental property.

Under the Deceased’s Will, the home and the rental property were to be held in trust for Joan until she died, no longer desired the properties, entered into a new relationship or moved to a seniors’ or nursing home. Upon such an event, the Will directed for the properties to be sold and for $100,000.00 to be held in a discretionary trust to meet Joan’s needs. The balance of the net proceeds of sale were to be divided amongst the Deceased’s issue. Joan was responsible for the carrying and repair costs for the properties during her life tenancy.

On the application, Joan argued that she had not considered the adequacy of the support she received under the Will prior to the expiration of the limitation period. At the time of the application, Joan was 78 years old, had limited resources to continue to pay the carrying costs of the properties and was considering moving into a care home. The latter option would only provide her with an interest in a discretionary trust of $100,000.00.

The respondent Estate Trustees argued that Joan’s claim was statute-barred, and also argued that Joan’s claim for support was weak on its merits.

Justice Lofchik’s Decision

As in prior cases that have considered the Court’s discretion under s. 61(2) of the SLRA, Justice Lofchik concluded that the discretion should be “exercised judicially in a broad and liberal manner.”

Justice Lofchik noted that the bulk of the Deceased’s Estate remained undistributed, and in fact could not be distributed until Joan’s life interest was extinguished. As a result, Justice Lofchik held that there would be no prejudice to the Estate or to the residuary beneficiaries in allowing Joan’s claim to proceed.

Justice Lofchik’s decision is consistent with prior decisions that have considered s. 61(2), where the Courts have held that the discretion to allow an application to proceed can be exercised at any time as to the assets that are undistributed as of the date of the application.

However, the discretion ultimately rests with the Court. The message to take from this case is that it is generally advisable for potential dependants to consider their present and future needs for support prior to the expiry of the statutory limitation period in order to minimize the additional risk and cost of seeking the leave of the Court.

Thank you for reading,

Umair Abdul Qadir

 

23 Jun

Dependant Support Claims, Limitation Periods and the Vesting of Real Property

Umair Common Law Spouses, Estate & Trust, Executors and Trustees, In the News, Litigation, Support After Death, Trustees Tags: , , , , , 0 Comments

We have previously blogged about the limitation period that applies to claims for dependant support under Part V of the Succession Law Reform Act (“SLRA”), and the circumstances in which the Court will exercise its discretion to extend the period.

In the recent decision of MacDonald v Estate of James Pouliot, 2017 ONSC 3629, the Honourable Justice Nightingale considered whether the limitation period could be extended for a dependant’s support claim where the real property owned by the deceased had already vested in a beneficiary, by operation of section 9 of the Estates Administration Act.

Limitation period for dependant support claims

Under subsection 61(1) of the SLRA, no application for  dependant support can be made more than six months after probate has been granted.

However, subsection 61(2) provides the Court with the discretion to allow an application to be made at any time “as to any portion of the estate remaining undistributed at the date of the application.”

As we have previously blogged, the Court has generally interpreted section 61(2) to allow claims that are made more than six months after probate as against the assets that remain undistributed as of the date of the application.  In one recent decision, the Court granted leave even though the assets of the estate had been distributed due to the conduct of the estate trustee.

The issue in Pouliot

In Pouliot, the Applicant (“Mary”) was in a common-law relationship with the Deceased for 22 years. The Deceased died intestate on September 10, 2013.

The primary asset of the Estate was a house (the “Home”) that Mary and the Deceased purchased together in 1999. Although each contributed to half of the cost of the Home, title to the Home was in the name of the Deceased. The Court found that Mary and the Deceased shared the expenses of the Home during their relationship. Following the Deceased’s death, Mary continued to live at the Home and made all of the monthly mortgage payments on the Home.

As the Deceased died intestate, and given that common-law spouses do not inherit on an intestacy, the Deceased’s son was the sole beneficiary of the Deceased’s Estate. The Deceased’s son (the “Estate Trustee”) obtained probate on June 8, 2015. Mary commenced her Application on November 10, 2016, seventeen months after probate was granted.

Mary’s Application sought a declaration that she had an equal interest in the Home by way of a constructive or resulting trust. Mary also sought support as a dependant pursuant to Part V of the Succession Law Reform Act. The Estate Trustee opposed Mary’s Application, arguing that it was statute-barred due to section 61 of the SLRA and section 9 of the Estates Administration Act.

Under section 9(1) of the Estates Administration Act, real property that has not been disposed of, conveyed to, divided or distributed amongst the persons who are beneficially entitled to it within three years after the death of the deceased owner automatically vests in such persons. Mary’s Application was commenced more than three years after the Deceased’s death.

In the circumstances, although Mary was successful in her claim that she held an equal interest in the Home, Justice Nightingale held that “the applicant’s SLRA claim in this proceeding is barred as it relates to the only property of the estate that has already vested in the respondent….”

The Court concluded that there were no assets in the Estate against which an order for support could be made in Mary’s favour.

Thank you for reading,

Umair Abdul Qadir

Other blogs you may enjoy:

01 Nov

Fraudulent Concealment and Statutory Limitation Periods

Umair Estate & Trust, Executors and Trustees, General Interest, Litigation Tags: , , , 0 Comments

Section 38 of the Ontario Trustee Act sets out a two-year limitation period from the date of death for actions by or against executors and administrators. However, as illustrated by a recent decision of the Ontario Superior Court of Justice, the equitable doctrine of fraudulent concealment can operate to toll this statutory limitation period.

Fraudulent concealment can affect estate limitation periods
“The equitable doctrine of fraudulent concealment can operate to toll this statutory limitation period”

In Roulston v McKenny, 2016 ONSC 2377, the Estate Trustee of the Deceased’s Estate brought an Application for the directions of the Court as to whether an action against the Estate was statute-barred. The Deceased died on March 20, 2013, and the claim against the Estate was not commenced until September 18, 2015.

The Deceased and his former wife (the “Respondent”) had entered into a separation agreement that required the Deceased to maintain $150,000.00 in life insurance, with the Respondent as the designated beneficiary.

Shortly after the Deceased’s death in March 2013, the Estate Trustee discovered that the Deceased’s life insurance policies had lapsed due to non-payment. However, the Court found that the Estate Trustee initially suggested that the insurance had not lapsed, and then delayed bringing an application for the advice and direction of the Court on the issue until more than two years after the Deceased’s death. The Estate Trustee’s counsel did not advise the Respondent’s counsel of the lapse until September 2013.

In September 2015, less than two years after the Respondent was first advised that the insurance policies may have lapsed, the Respondent sued the Estate to recover the $150,000.00 debt under the separation agreement.

The Respondent argued that the doctrine of fraudulent concealment should apply to toll the limitation period. As set out in the Court of Appeal’s decision in Giroux Estate v Trillium Health Centre, the doctrine of fraudulent concealment operates to forbid a party in a special relationship with a party from using a limitation period for a fraudulent purpose.

In Giroux Estate, the Court of Appeal set out the three criteria to be met for the doctrine to be applied:

  • the parties must be engaged in a relationship of a special nature;
  • due to the special nature of the relationship, the defendant’s conduct is unconscionable; and
  • the defendant conceals the plaintiff’s right of action.

In the present case, given that the insurer would only release information about the Deceased’s insurance policies to the Estate Trustee and the Estate Trustee had “exclusive possession” of the information, the Court concluded that the parties were in a special relationship. The Court also concluded that the Estate Trustee’s conduct was unconscionable, given the special relationship between the parties.

Finally, the Court held that the Estate Trustee’s failure to advise the Respondent of the lapse of the policies had the effect of concealing that the Respondent had a claim against the Estate.

In the result, the Court found that the doctrine of fraudulent concealment applied to toll the limitation period until September 2013, and the Respondent’s claim was thus not statute-barred.

Thank you for reading,

Umair Abdul Qadir

18 Oct

Weigand v. Weigand Estate: Limitation Periods and Dependant Support Claims

Laura Betts Common Law Spouses, Estate Planning, Executors and Trustees, Litigation, Support After Death Tags: , , , , , 0 Comments

Section 61(1) of the Succession Law Reform Act (the “SLRA”) provides that an application for dependant’s support must be made within 6 months from the issuance of the Certificate of Appointment of Estate Trustee (also known as “Probate”).

An application may be made beyond the six-month limitation period, with leave as, s. 61(2) of the SLRA provides the Court with discretion to allow an application to be made by a dependant “at any time with respect to any portion of the estate remaining undistributed at the date of the application”.

Weigand v. Weigand Estate, 2016 ONSC 6201, deviates from prior case law, granting leave for an application for support, after assets of the estate had been distributed.
“Generally, case law has interpreted s. 61(2) to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed.”

Generally, case law has interpreted s. 61(2) to limit any claim made after six months to the remaining, undistributed portion of the estate, and to bar any claim made after the assets have been fully distributed. Paul Trudelle previously blogged on this application of s. 61(2).

The recent decision of the Ontario Superior Court of Justice in Weigand v. Weigand Estate, 2016 ONSC 6201, deviates from this prior case law, in that it grants leave for an application for support, despite the fact that the assets of the estate had already been distributed.

In that case, the Deceased died on May 5, 2013. He was survived by his common law spouse and three children from a prior marriage. The Deceased left a Will, in which he named his common law spouse the Estate Trustee and sole beneficiary of his Estate. The Estate consisted of the matrimonial home, two promissory notes and the Deceased’s bank accounts.

The common law spouse obtained probate on November 5, 2013 and took steps to administer the Estate. Eleven months after the Estate had been fully administered, two of the Deceased’s three children brought an Application for leave to advance their respective claims for dependant support. They alleged to have been misled by the common law spouse and provided Affidavit evidence, which was corroborated by evidence from their grandfather. Specifically, they alleged that the common law spouse had told them she intended to sell the house and distribute the proceeds equally among the Deceased’s children. They relied on her promise, to their detriment, as the home was subsequently transferred into the common law spouse’s name after the limitation period had expired.

In deciding to grant leave, George J, stated that the discretion to extend (or refuse) is a question of what is equitable between the parties, in all the circumstances (para. 32). He stated that it would be wrong to allow the respondent to rely on the fact that she has distributed the Estate as a basis to not grant an extension and that it would be unconscionable to allow her to defeat a claim by virtue of a passed limitation period (para 34). He also reasoned that it was inconceivable that the language used in s. 61(2) was intended to shield administrators who engage in such behaviour (para 34).

Thank you for reading.

Laura Betts

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