Navigating Limitation Periods in Estate Litigation

Limitation Periods in Estate Litigation

Estate litigation in Ontario, Canada, is a complex legal realm that deals with various disputes related to the distribution of a deceased person’s assets and financial affairs. When engaging in estate litigation, it’s crucial to be aware of the limitation periods that govern these legal proceedings. In this blog post, we will explore the limitation periods for key aspects of estate litigation in Ontario, including will challenges, dependant support claims, and equalization of assets under the Family Law Act in the event of a spouse’s death.

The Limitations Act, 2022 S.O. 2002, c. 24, Sched. B, came into force on January 1, 2004, with the hope of both consolidating and reforming the laws surrounding limitation periods. If you are seeking information about a limitation period, it would be understandable that your inquiry would start there.

The “basic” limitation period, suggesting a rule-of-thumb, would be two years from the “discovery” of a claim.

If there is a claim that is determined not to have a specific limitation period assigned, the Limitations Act also prescribes an “ultimate” period of 15 years which is irrespective of discoverability.

Limitation Period for a Will Challenge

A will challenge may occur when someone believes that a deceased person’s will is not valid, that they lacked the capacity to execute the will or when they believe the will was procured by undue influence.

In Ontario, the limitation period to challenge a will is two years from the date of the testator’s death. This follows the “basic” limitation period under the Limitations Act. It was reinforced in the Ontario Superior Court decision of Leibel v. Leibel, 2014 ONSC 4516.

However, it’s important to note that this two-year period can be extended in certain circumstances if there are valid reasons for the delay, or subject to “discoverability”.

The fundamental idea behind discoverability is that a limitation period should not start running until the claimant knows or reasonably ought to have known that they have suffered harm or that their legal rights have been violated. In other words, the clock starts ticking when a reasonable person, exercising due diligence, would have become aware of the facts or circumstances giving rise to the claim.

Limitation Period for a Dependant Support Claim

In Ontario, there are other pieces of legislation that govern estate litigation and impose limitation periods.

Under the Succession Law Reform Act, certain individuals who were financially dependent on the deceased person can make a dependant support claim. This claim allows eligible claimants to seek financial support from the deceased’s estate if they were not adequately provided for in the will.

The limitation period for filing a dependant support claim is six months from the issuance of the Certificate of Appointment of Estate Trustee (commonly known as probate). It’s crucial to act promptly within this timeframe to protect your rights as a potential dependant.

Limitation Period for a Spouse to Equalize under the Family Law Act

In cases where a spouse dies, the surviving spouse may have rights under the Family Law Act to seek equalization of net family property. Net family property refers to the difference in the value of the couple’s assets acquired during the marriage, minus any debts and liabilities, and it aims to ensure a fair distribution of marital assets upon separation or death. If a spouse wishes to equalize their net family property after the death of their partner, they must commence legal proceedings within six months from the date of death.

Estate Trustee Claims on Behalf of a Deceased

Estate Trustees can bring claims or manage actions that the Deceased may have been involved in. For example, if the deceased was injured in an accident and there is liability for personal injury, the estate trustee has two years from the date of death to commence an action based on the Trustee Act.

Limitation Period for a Passing of Accounts

Section 4 of the Limitations Act provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

However, the Ontario Court of Appeal in the 2016 decision of Armitage v. The Salvation Army held that an application to pass accounts is not a “claim” as anticipated by the legislation. As such, it is not subject to the two-year limitation period.

In 2018, citing the Armitage case, the Ontario Court of Appeal sitting as Divisional Court, held in Wall v. Shaw that the same two-year limitation period also does not apply to an objection to accounts.

In a practical sense, this protects estates from situations in which estate trustees could simply wait out the clock to avoid scrutiny. However, as this demonstrates, a simple reading of the legislation proscribing a limitation period is not necessarily the full picture.


Estate litigation involves various legal intricacies, including limitation periods that govern the timing of certain claims and challenges.

Limitation periods are meant to promote legal certainty, encourage timely resolution, preserve evidence, and reduce burdens on the court system. However, navigating these limitation periods can be crucial and complex.

Failing to meet the prescribed deadlines can result in the loss of your legal rights and claims.

To ensure a smooth and successful estate litigation process, it’s advisable to consult with an experienced attorney who can guide you through the specific requirements and deadlines applicable to your case.

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