Limitation Periods for Estate Claims in Ontario

If you think an estate has been mishandled, or that you are owed something from it, the first practical question is often how long you have. Waiting can be costly, because a claim brought too late can be barred no matter how strong it is.

This article walks through the basic Ontario rule, how the start date works for claims against an executor (called an estate trustee), and the situations where the usual two-year period does not apply. It is general information, and other deadlines may apply to your claim, so confirm the details with a lawyer.

The basic two-year rule

Under section 4 of the Limitations Act, 2002, a proceeding cannot be commenced in respect of a claim after the second anniversary of the day the claim was discovered. That is the basic limitation period, and it is the starting point for most civil claims, including many claims connected to estates.

The key words are "discovered" and "commenced". Discovery fixes when the clock starts. Commencing a proceeding means actually starting a court case, which is different from writing a letter or raising a concern. The Court of Appeal held that a beneficiary's notice of objection to an estate trustee's accounts does not commence a proceeding.

When the clock starts for claims against an estate trustee

Under the Limitations Act, 2002 a person is presumed to have known of a claim against an estate trustee on the day the act or omission took place, unless the contrary is proved. So if a trustee did something questionable, the law starts from the assumption that you knew on that day.

This presumption applies unless the contrary is proved. Whether a later start date is available depends on the evidence, such as when information was disclosed to you. Do not assume a later date without advice.

Situations where the two-year period works differently

On accounts, the Court of Appeal explained why a bar would be unfair. It warned that a limitation bar on objecting to accounts would give an estate trustee a perverse incentive to wait out the two-year period and would insulate the trustee's management of an estate from effective scrutiny. In Ontario there is no statutory requirement for an estate trustee to pass accounts, and no law requires accounts at fixed intervals. A court can compel a passing at the instance of a person with an interest.

On declarations, the exception is narrow. It applies where only a declaration is sought and no consequential relief is sought. If you also want money, property or another remedy, the analysis changes.

Powers of attorney before death

Some disputes involve what an attorney for property did before the person died. A court may on application order that all or part of an attorney's accounts be passed, and a person outside the listed applicants needs leave of the court. Where the donor has died and the attorney is also the estate trustee, beneficiaries have been allowed to seek leave to obtain an accounting for the pre-death period. How these claims interact with limitation periods depends on the facts and is worth raising with a lawyer early.

Practical steps if a deadline may be running

If you suspect a problem, treat the two-year period as a reason to act promptly. Asking for accounts or information does not start a court case. The sensible approach is to work out the earliest date you could be said to have known of the problem, count forward, and speak to a lawyer well before that date.

• Write down what you think went wrong and the date each act or omission happened.
• Write down when and how you first learned of it, and keep the documents that show this.
• Mark the second anniversary of that date on a calendar, and treat the earlier date as the safer one.
• Do not rely on an objection or letter alone, since a notice of objection to accounts does not commence a proceeding.
• Ask a lawyer whether another limitation rule, beyond the basic period, applies to your claim.
• If the dispute is only about whether a will is valid, ask whether a declaration-only claim fits your situation.

Frequently asked questions