The Ontario Court of Appeal has recently confirmed that there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought.
In Piekut v. Romoli, 2020 ONCA 26 the deceased parents had executed wills providing that upon their deaths their estate would be divided equally among their three adult children. After both parents died in June and July 2008, one of the adult children asserted that the parents had executed codicils to their wills in July 2006 providing that she was to inherit two of the five properties owned by the parents.
One of the other adult children brought an Application in Superior Court seeking a determination of whether the codicils were valid. That Application was met by a motion to dismiss based on the expiry of the two year limitation period under the Limitations Act.
The Court of Appeal upheld the motion judge’s conclusion that section 16(1) (a) of the Limitations Act provides that “there is no limitation period in respect of a proceeding if no consequential relief is sought.” The decision of Justice Greer in Leibel v. Leibel, 2014 ONSC 4516 was distinguished because the Applicants in Leibel had “clearly sought consequential relief in addition to a determination of the validity of the will. This consequential relief included: an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will; an Order removing the Estate Trustees; an Order that the Estate Trustee’s pass their accounts; an Order appointing an Estate Trustee During Litigation; and an Order for damages in negligence against the drafting solicitor and her law firm”.
This is a very helpful decision for counsel to keep in mind when dealing with will challenge files with limitation period concerns.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.