In estate litigation, the limitation period is a crucial topic. Once the limitation period expires, no one has the right to challenge the distribution of an estate or a will. That’s why we’ve chosen to address it in the first article of this series.
The topic of limitation periods is both sensitive and complex. On one hand, estate litigation is part of civil litigation, so the Limitations Act, 2002 applies.
The most common concepts include:
- s.4 – Basic Limitation Period:
- A claim must generally be brought within two years from the date the claim is discovered.
- s.5 – Discoverability:
- The clock starts when a claimant knows or ought to know the facts giving rise to the claim.
- s.15 – Ultimate Limitation Period:
- Regardless of discoverability, claims must be brought within 15 years from the event that caused the claim.
On the other hand, estate litigation has unique limitation rules because estate-related disputes often unfold over many years. For instance, when a testator is 50 years old, his lawyer drafts a will with a significant error. The testator passes away at age 70, and the mistake is discovered one year later. Does the 15-year limitation period start at age 50, when the will was drafted, or after the testator’s death, when the error is discovered? This difference can or cannot determine whether the beneficiaries can sue the lawyer.
Adding to the complexity, court decisions, including appeals, can sometimes overturn earlier rulings.
To simplify this, let’s focus on the statutes that outline limitation periods relevant to estate litigation:
- s.7(3) Family Law Act
- The statute states that claims for the equalization of net family property must be made within six months after the death of the other spouse.
- s.61 Succession Law Reform Act
- The statute states that a dependant’s support claim must be made within six months of the estate trustee’s appointment, but the court may allow a claim after this period if the estate has not been fully distributed.
- s.4 Limitations Act
- The statute states that a claim must be commenced within two years from the day the claim was discovered.
- Additionally, no claim can be brought after 15 years from the day the act or omission occurred, regardless of when it was discovered.
- s.38(3) Trustee Act
- The statute states that a claim against the estate of a deceased person for damages related to a cause of action that survived their death must be commenced within two years from the date of death.
- s.4 Real Property Limitations Act
- The statute states that a beneficiary’s claim to recover real property that was improperly conveyed must be commenced within 10 years from the date the right to bring the claim first arose (meaning when the property was improperly conveyed)
- s.44(2), s.45(2) Estates Act
- The statute states that a claimant must apply to the Superior Court of Justice for an order allowing their claim within 30 days of receiving a notice of contestation. The court may extend this deadline by up to three months if the claimant applies for an extension. If the claimant fails to apply within the specified time, the claim is deemed abandoned and permanently barred.
- s.47(1)(2) Estates Act
- The statute states that the Trustee Act does not bar a claim against an estate if the claimant files notice of their claim, with full particulars verified by affidavit, before the expiry of the limitation period under the Trustee Act. If no executor or administrator has been appointed, the notice can be filed with the court registrar instead.
- But then a special rule says if a claim would normally be barred under the Trustee Act within three months after the death of the person, the limitation period is extended. In such cases, the claim is deemed not barred until three months after the date of death.
- s.17(5) Estates Administration Act
- The statute provides that, if someone mistakenly pays money to an estate or makes a payment under a judgment that is later overturned, they have up to 10 years to seek repayment.
- Ingram v. Kulynych Estate, 2024 ONCA 678
- Story:
- Kathleen Ingram claimed she had a common-law relationship with Henry Kulynych, who died in 2017.
- Kulynych’s estate had been distributed to his beneficiaries.
- Ingram sought a share of his estate, arguing unjust enrichment and claiming a constructive trust, but her application was filed over four years after his death
- The estate argued her claims were statute-barred.
- Held:
- The Court of Appeal for Ontario ruled that the two-year limitation period under section 38(3) of the Trustee Act applies to the equitable trust claim against the estate. The respondent’s claim, brought more than two years after Kulynych’s death, was declared statute-barred and dismissed.
- Ratio:
- The court clarified that the unjust enrichment claims against estates are considered “wrongs” under s.38(2) of the Trustee Act and must adhere to its two-year limitation period., Also, the longer ten-year limitation period under s.4 of the Real Property Limitations Act does not apply to equitable trust claims involving estates.
- Story:
In conclusion, when discussing any lawsuit, the first step is always to check the applicable limitation period. In estate litigation, this is even more critical due to the specific statutes and case law governing such disputes. Paying close attention to the details is essential to ensure compliance and protect your rights.