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The Limitation Period to Commence a Will Challenge Seeking Substantive and Consequential Relief

 Bristol v. Bristol, 2020 ONSC 1684 (CanLII), http://canlii.ca/t/j6079  

Introduction

In this motion to dismiss, brought by the Respondent (Berry), the Ontario Superior Court of Justice was asked to dismiss a Notice of Application (the “Application”) as well as an ancillary Notice of Objection (“Objection”) filed by the Applicant (Stephanie), on the grounds that the Application was statute-barred.

In arguing against the dismissal of the Application, the Applicant stated that the Objection and the accompanying Notice of Appearance were considered a “proceeding”, which was filed within the limitation period. Alternatively, the Applicant argued that she was self-represented until April 2019 and did not understand that she needed to issue an Application to crystallize the complaints set out in her Objection.

Background

Elizabeth Bristol (the “Deceased”), passed away on December 6, 2016. The Deceased had ten children. The Applicant is the Deceased’s daughter, and, the Respondent, the Deceased’s son.

The Deceased had executed the following two wills, both prepared by a lawyer.

  1. The first will (referred to as the “2002 Will”), divided her estate equally between her ten children and named the Respondent as Estate Trustee.
  2. The second will (referred to as the “2004 Will”), named the Respondent as the Estate Trustee and the sole beneficiary of the Deceased’s estate.

The Applicant filed an Objection on December 30, 2016, objecting to the issuance of a Certificate of Appointment of Estate Trustee to the Respondent on the grounds that the Deceased lacked testamentary mental capacity at the time she executed the 2004 Will; that the Deceased was unduly influenced by the Respondent, since the Deceased made a dramatic change to her will by leaving the residue of her estate to the Respondent alone; and, that the will makes no provision for dependants. The Objection was prepared by a Lawyer that the Applicant had consulted at the time.

Upon the Respondent filing the Application for Certificate of Appointment of Estate Trustee with a Will on January 29, 2017, the Registrar issued a Notice, that an Objection had been filed. The Applicant filed a Notice of Appearance on July 25, 2017. No further steps were taken by either party until the Applicant brought a Motion for Directions on April 23, 2019, seeking direction from the Court as to what steps she should take. The Court indicated that the Applicant should issue her Application within 45 days but without prejudice to the Respondent bringing a motion to dismiss on the grounds that the Application was statute-barred.

Issues and Analysis

There were a few issues that the Court had to consider and analyze.

In determining when the limitation period began to run, the Court reviewed the Limitations Act,[1] specifically sections 4 (dealing with the basic limitation period of two years) and, 5 (dealing with the discovery of a claim and the presumption that a person shall be assumed to have known of the claim on the day the act or omission on which the claim is based took place unless the contrary is proved).

The Court considered the case of Leibel v Leibel, where it was confirmed that a will speaks from the date of death and, as such, any proceeding must be taken within two years of the date of death, barring any discoverability issues.[2]

There was no dispute that the Applicant knew of the contents of the 2004 will by at least December 7, 2016, and certainly by the date of filing the Objection on December 30, 2016.

In determining whether the discoverability principle would apply to delay the running of the two-year limitation period, the Court found that the Applicant knew of concerns related to undue influence and/or capacity as of December 30, 2016, when she filed the Objection since she had retained a lawyer to prepare same, and, she had received a copy of the will shortly after the date of death (or knew of its contents).

The Court stated that the Applicant’s claims were “discoverable” as early as December 7, 2016, and as late as December 30, 2016, therefore she was in a position to move forward with her claims during the two-year limitation period.

The Court further stated “… [the Applicant] may view this interpretation “unfair” but, a strict approach to containing litigation must reasonably be what the Legislature intended when they changed the limitation period from six years to two years.”[3]

In determining whether any of the steps taken by the Applicant before December 30, 2018, constituted a “Proceeding” within the meaning of the Limitation Act, the Court looked at rule 1.03 of the Rules of Civil Procedure,[4] which defines a “proceeding” as either an action or application. An application includes a Notice of Application which would include a Notice of Application for Appointment of Estate Trustee with a Will.

The Court found that neither, the Objection filed on December 30, 2016, nor, the subsequent Notice of Appearance filed by the Applicant qualified as a “proceeding.” It further stated that a Motion for Directions is not a “Proceeding” and cannot retroactively cure the Applicant’s timing problem. Of note is that the Motion for Directions itself was brought outside the limitation period.

In determining whether the Application can stand due to its claims for declaratory relief, the Court found that this position is not justifiable, as the relief sought by the Applicant was truly substantive and consequential relief.

Takeaway

Importantly, the Court found that the Applicant cannot escape the consequences of sections 4 and 5 of the Limitations Act by framing her relief as declaratory. The motion to dismiss was granted.

[1] 2002, S.O. 2002, c. 24, Sch. B

[2] 2014 ONSC 4516, 2014 CarswellOnt 11102 at para 36

[3] Para 27 of Bristol

[4] Rules of Civil Procedure,  R.R.O. 1990, Regulation 194

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.

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