An individual seeking to challenge or dispute a will should start legal action within two years or it will probably be too late, following an important ruling. The estate litigation solicitors at Rogerson Law frequently advise and represent clients making or defending claims against deceased estates.

The Ontario Superior Court of Justice has made clear that challenges to a will must be made within two years, noting that “the will speaks from death”. The court had to consider whether such challenges are subject to a limitation period of two years. A limitation period is the period of time during which legal action must be started, otherwise it will be ‘statute barred’.

In this case, the deceased left two wills (a Primary Will and a Secondary Will) which left a named asset to one of her two sons, Blake, and the rest equally between them both. More than two years after his mother’s death, Blake applied to court for a declaration that the wills were invalid on the basis that his mother lacked capacity and she was unduly influenced.

The other son, Cody, and others applied for an order dismissing Blake’s application on grounds that it was outside the two year limitation period and therefore statute-barred.

The court decided the two year limitation period started to run from the date of death ‘since a Will speaks from death’, and Blake knew enough material facts to commence a will challenge earlier than he did. He knew, for instance, of the date of his mother’s death, that she had been suffering terminal illness, he had received copies of the wills, he knew she had previous wills, and knew what assets there were in the estate. In addition, Blake had taken no steps to extend the period under the Act.

In a somewhat damning statement, Greer J said in his ruling: “It seems to me that Blake …. decided that he had not received enough benefit under Eleanor’s Wills and he did not want to share the residue with Cody. He therefore launched his Application.”

The court also rejected Blake’s argument that a will challenge is not subject to a limitation period on the basis such a claim is for declaratory and not consequential relief (where there is no statutory limitation period). To hold otherwise would put the Estate Trustees at risk of being sued.

What does this mean?

Challenges to wills must be made promptly and should be made well within the two year limitation period set by law. The sooner a claim can be started, the quicker it should be to resolve a will dispute.

How can we help?

If you are a trustee or personal representative of a deceased estate facing a challenge from a beneficiary or other individual; or if you believe you have a valid claim against an estate, contact the estate litigation lawyers at Rogerson Law for urgent advice. The sooner you act the better.

Rogerson Law Group is highly experienced in handling will disputes and estate litigation internationally as well as in the entire Greater Toronto Area including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in Downtown Toronto and Barrie with an associated in Ottawa.

¹ Leibel v. Leibel, 2014 ONSC 4516