Time Limits to Sue an Estate or Estate Trustee in Ontario

Estate disputes are often emotional, and it is easy to wait and hope things settle. But some estate claims have short deadlines, and missing one can end the claim. If you think you may have a claim against an estate or an estate trustee, the time to find out which deadline applies is early.

There is no single estate deadline. Different kinds of claims follow different rules. This article walks through the main ones so you can spot which may apply to you. It is general information; the dates depend on the facts and a lawyer should confirm yours.

There is no one deadline for every estate claim

Some deadlines come from the Succession Law Reform Act, some from the Family Law Act, some from the Rules of Civil Procedure, and some from the general Limitations Act, 2002. Which one applies depends on what you are claiming and who you are claiming against.

The six-month rule for support claims

The court can order support from an estate where the deceased did not make adequate provision for a dependant. A dependant is a spouse, parent, child or sibling the deceased was supporting. A common-law spouse does not inherit under the intestacy rules, but a support claim by a dependant is a separate matter, and dependants can include a common-law partner the deceased was supporting.

The application must be made within six months after the grant of probate or administration. The court may allow an application at any time as to any part of the estate not yet distributed. Do not rely on that exception. Once assets have been paid out, there may be less to claim against.

For these support claims only, non-estate assets such as joint accounts, property held in joint tenancy, life insurance owned by the deceased and amounts payable under a beneficiary designation are treated as part of the estate.

Challenging a will or claiming estate property

For many civil claims the basic limitation period is two years from the day the claim was discovered. Ontario courts have held a will challenge brought more than two years after the death, with no discoverability issue, to be statute-barred. How discoverability applies to will challenges can be unsettled and depends on the facts, so do not assume you have two years from any date.

Before the court will order proof of a will, a person with a financial interest must meet a minimal evidentiary threshold: some evidence which, if accepted, would call the will's validity into question. Gathering that evidence takes time, which is another reason to move early.

When a parent makes a gratuitous transfer to an adult child, including into a joint account, it is presumed to be held on a resulting trust for the parent's estate. That presumption can be rebutted by evidence, on a balance of probabilities, that the parent intended a gift at the time of the transfer. For a transfer to a minor child, the starting point is instead the presumption of advancement, which is a gift. How a time limit applies to that kind of claim depends on the facts and is worth confirming with a lawyer.

Filing an objection before a certificate is issued

Anyone who appears to have a financial interest in the estate may file a notice of objection (Form 75.1) at any time before a certificate of appointment of estate trustee is issued. It must state the nature of the interest and of the objection.

• A notice of objection expires three years after it is filed, unless withdrawn or removed by the court first.
• The applicant serves a notice to objector (Form 75.3).
• If the objector does not serve a notice of appearance (Form 75.4) within 20 days after that service, the application goes ahead as if no objection had been filed.

That 20-day window is short. If you receive a notice to objector, get advice quickly.

Why creditors and trustees care about timing

A personal representative who has given the required notices to creditors may distribute the estate and is not liable to a creditor whose claim they had no notice of at the time of distribution. A creditor keeps the right to follow estate assets into the hands of the people who received them.

In practice, once an estate is distributed, claims become harder to pursue. That is why the earlier you raise a claim, the better your position generally is.

What to do next

• Write down the date of death and the date probate or administration was granted.
• Note when you first learned of the facts behind your claim.
• Collect the will, bank records and any letters about the estate.
• Ask the estate trustee in writing whether assets have been distributed.
• Speak with an Ontario estates lawyer promptly so the right deadline can be confirmed.

Frequently asked questions