Time Limits to Sue an Estate or Challenge a Will in Ontario

Estate disputes run on deadlines, and missing one can end a claim before it is heard. The difficult part is that different types of claims have different clocks, and they start at different points.

This article walks through the main time limits that come up when someone wants to sue an estate, claim support or deal with a spousal election. It is general information. How a deadline applies to you depends on the facts, so confirm dates with a lawyer as early as you can.

The general two-year rule

Under the Limitations Act, 2002, a proceeding must be started within two years after the day the claim was discovered. A claim is discovered on the earlier of when the person first knew of the loss and related matters, or when a reasonable person in their circumstances ought to have known.

There is also an ultimate limit of 15 years from the act or omission, whatever the date of discovery. The two-year period is suspended while a claimant is incapable and has no litigation guardian.

Whether and how these rules apply to a particular estate dispute, including a challenge to a will, depends on the nature of the claim and the facts. That is worth confirming with a lawyer.

Claims by or against a deceased person

The Trustee Act lets an executor or administrator sue for torts or injuries to the deceased's person or property. It also lets a person who was wronged sue the executor or administrator of the wrongdoer. An action under that section shall not be brought after two years from the death of the deceased.

For creditors and others with claims against an estate, the Estates Act preserves a claim if a full notice verified by affidavit is filed with the executor or administrator within the time stated there. If you think you are owed money by an estate, do not wait for the estate trustee to contact you.

On a passing of accounts, a beneficiary can file a notice of objection to the accounts or compensation. The Court of Appeal held that a notice of objection is not a claim or proceeding under the two-year period in section 4 of the Limitations Act, 2002.

Support and spousal claims

A dependant's support application under Part V of the Succession Law Reform Act generally cannot be made more than six months after the grant of probate or administration. The court may allow a later application for any part of the estate still undistributed.

A surviving spouse must choose between the will or intestacy entitlement and the equalization claim. That election must be filed with the Estate Registrar for Ontario within six months after the first spouse's death. If none is filed in time, the survivor is deemed to have chosen the will or the statutory entitlement, unless the court orders otherwise.

An equalization application under section 5 of the Family Law Act is barred if brought more than six months after the first spouse's death. The court can extend time limits where there are apparent grounds for relief, the delay was in good faith and no one suffers substantial prejudice. In Toronto, applications to extend time for the election should be brought on the Estates List.

Deadlines at a glance

Extensions are possible in some situations, but they are not automatic and usually need a court application.

What to do next

• Write down the date of death, the date probate or administration was granted, and when you first learned of your possible claim.
• Count the earliest possible deadline from each date and diarize it, then treat that as your working date.
• Do not rely on the estate trustee's timeline for distributing the estate, since the estate may be distributed before your claim is resolved.
• Collect documents that show when you knew what, such as letters, emails and account statements.
• Speak with an Ontario estates lawyer promptly, especially if a six-month date is near or may already have passed.

Frequently asked questions