In the recent decision of Tessaro v. Gora (“Tessaro”),[1] Justice Myers provided clarity on the interpretation and applicability of the ultimate 15-year limitation period to claims made against negligent Will drafting lawyers.
Facts
In Tessaro, Leopold Rcyzkowksi (“Mr. Ryczkowski”) passed away on July 16, 2018. Mr. Ryczkowski had three sisters, Virginia Boyle (who is still alive), Irene Sedgewick (who survived Mr. Ryczkowski but has since passed away) and Monica Marzec (who predeceased Mr. Ryczkowski). Monica Marzec had two daughters, Kim Marzed and Lynn Tessaro.[2]
In 1991, Mr. Ryczkowski retained estate lawyer John Leonard Zigmund Gora (the “Defendant”). On November 6, 1991, Mr. Ryczkowski executed a Will prepared by the Defendant (the “Impugned Will”). Justice Myers singled out one provision in the Impugned Will which states:
To such of my sisters living at the time of my death, I give whatever real estate that I own or that may be in my possession at the time of my death, in equal shares per stirpes.[3]
The first underlined phrase appears to suggest that only Mr. Ryczkowski’s two sisters who survived him will receive a share in his real estate. However, the second underlined phrase “in equal shares per stirpes” suggests that Mr. Ryczkowski’s predeceased sister having a share that is then available to her daughters equally.[4]
Accordingly, this and other paragraphs in the Impugned Will create an ambiguity as to whether Mr. Ryczkowski’s two surviving sisters alone each take 50% of his real estate or whether it divides the real estate into thirds, with the share of the deceased’s sisters Monica Marzec being shared between two daughters.[5]
In 2020, two separate actions were brought against the Defendant by Mr. Ryczkowski’s sisters and his nieces, for negligent drafting of the Impugned Willm alleging that they received less than Mr. Ryczkowski intended for them to receive.[6]
Issue
The central issue in Tessaro was whether the Plaintiffs were statute barred from bringing their claim against the Defendant. The relevant limitation period being section 15 of the Limitations Act, 2002[7] which provides as follows:
Ultimate limitation periods
15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section. 2002, c. 24, Sched. B, s. 15 (1).
General
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place. [emphasis added]
To address the issue in Tessaro, Justice Myers was required to interpret the meaning of “act of omission on which the claim is based” in section 15 of the Limitations Act, 2002. The answer to this question was necessary to determine whether the Plaintiffs were statute barred from bringing their claim for negligence or not.[8]
The Defendant argued that the 15-year limitation period began when the Impugned Will was drafted, namely November 6, 1991, and therefore the Plaintiffs were statute barred from bringing their claim. The Plaintiffs, meanwhile, argued that since a Will speaks from death, the limitation period began to run on Mr. Ryczkowski’s passing, which was July 16, 2018, and therefore they were within their rights to bring their claim.[9]
Justice Myers provides an in-depth analysis of the purpose of the Limitations Act, 2002, which was enacted as part of a reform of limitations law in response to the common law’s broad adoption of the “discoverability principle” as the driver of the commencement of limitation periods. The issue identified by the legislature was that the rule could effectively extend indefinitely the period for which potential defendants remain at risk of being sued. As highlighted by Chief Justice Strathy in Levesque v. Crampton Estate,[10] main point of limitations statutes from a public policy perspective is to avoid the risk of indeterminate liability.[11]
In Tessaro, liability was claimed based on the Defendant’s poor drafting of the Impugned Will. Using the modern principles of statutory interpretation, Justice Myers could not find that the “act or omission on which liability is based” began on Mr. Ryczkowski’s date of death, given he died more than 25 years after the Defendant last dealt with the Impugned Will.[12]
Justice Myers also noted that there is no omission in this case. An “omission” in tort law refers to an act not done when a person is under a duty to act. Omissions are actionable where the defendant had a duty to act and failed to do so. An omission does not refer to the quality of an act but, rather, to a failure to act when one was duty-bound to act.[13]
Decision
Accordingly, Justice Myers found that the Plaintiffs were statute barred from bringing their claim on the basis that the limitation period arose from the date of the drafting of the Impugned Will, not Mr. Ryczkowski’s date of death.
Justice Myers noted the importance that the law places on the ability of beneficiaries to sue lawyers for negligently drafting wills. Doing so properly holds lawyers to account and protects the integrity of the legal system of inheritance and succession. Generally speaking, people are entitled to rely on wills to carry out the intentions of their deceased parents, relatives, or benefactors. People may have waited their whole lives for an inheritance. They should not be disappointed by actionable negligence of a lawyer.[14]
The Plaintiffs submitted that if the 15-year limitation period applies, people who do the responsible thing and obtain a will while young will be penalized. The Defendant, by contrast, argued that perhaps wills lawyers should be counselling people to check their wills at least every 15 years. Ultimately, while recognizing the perceived unfairness with the result, Justice Myers noted that the main role of the court is to interpret legislation. Moreover, that the act of creating exceptions to the ultimate limitation period due to perceived unfairness is the role appropriately governed by Legislature, not the judiciary.[15]
Concluding Comments
The decision in Tessaro is informative to estate planning lawyers, litigators and beneficiaries as to the relevant limitation period that applies to claims brought against lawyers for negligently drafted wills.
—
[1] Tessaro v. Gora, 2024 ONSC 198 (“Tessaro”).
[2] Tessaro at paras 11 – 16.
[3] Tessaro at para 19.
[4] Tessaro at para 20.
[5] Tessaro at para 21.
[6] Tessaro at paras 23 and 24.
[7] Limitations Act, 2002, S.O. 2002, c. 24, Sched. B
[8] Tessaro at paras 30 – 32.
[9] Tessaro at para 31.
[10] 2017 ONCA 455 (CanLII)
[11] Tessaro at paras 42 – 55.
[12] Tessaro at para 59.
[13] Tessaro at para 60.
[14] Tessaro at para 94.
[15] Tessaro at paras 95 and 96.
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Written by: Oliver O'Brien
Posted on: January 28, 2025
Categories: Commentary, Limitation Periods, WEL Newsletter
In the recent decision of Tessaro v. Gora (“Tessaro”),[1] Justice Myers provided clarity on the interpretation and applicability of the ultimate 15-year limitation period to claims made against negligent Will drafting lawyers.
Facts
In Tessaro, Leopold Rcyzkowksi (“Mr. Ryczkowski”) passed away on July 16, 2018. Mr. Ryczkowski had three sisters, Virginia Boyle (who is still alive), Irene Sedgewick (who survived Mr. Ryczkowski but has since passed away) and Monica Marzec (who predeceased Mr. Ryczkowski). Monica Marzec had two daughters, Kim Marzed and Lynn Tessaro.[2]
In 1991, Mr. Ryczkowski retained estate lawyer John Leonard Zigmund Gora (the “Defendant”). On November 6, 1991, Mr. Ryczkowski executed a Will prepared by the Defendant (the “Impugned Will”). Justice Myers singled out one provision in the Impugned Will which states:
To such of my sisters living at the time of my death, I give whatever real estate that I own or that may be in my possession at the time of my death, in equal shares per stirpes.[3]
The first underlined phrase appears to suggest that only Mr. Ryczkowski’s two sisters who survived him will receive a share in his real estate. However, the second underlined phrase “in equal shares per stirpes” suggests that Mr. Ryczkowski’s predeceased sister having a share that is then available to her daughters equally.[4]
Accordingly, this and other paragraphs in the Impugned Will create an ambiguity as to whether Mr. Ryczkowski’s two surviving sisters alone each take 50% of his real estate or whether it divides the real estate into thirds, with the share of the deceased’s sisters Monica Marzec being shared between two daughters.[5]
In 2020, two separate actions were brought against the Defendant by Mr. Ryczkowski’s sisters and his nieces, for negligent drafting of the Impugned Willm alleging that they received less than Mr. Ryczkowski intended for them to receive.[6]
Issue
The central issue in Tessaro was whether the Plaintiffs were statute barred from bringing their claim against the Defendant. The relevant limitation period being section 15 of the Limitations Act, 2002[7] which provides as follows:
Ultimate limitation periods
15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section. 2002, c. 24, Sched. B, s. 15 (1).
General
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place. [emphasis added]
To address the issue in Tessaro, Justice Myers was required to interpret the meaning of “act of omission on which the claim is based” in section 15 of the Limitations Act, 2002. The answer to this question was necessary to determine whether the Plaintiffs were statute barred from bringing their claim for negligence or not.[8]
The Defendant argued that the 15-year limitation period began when the Impugned Will was drafted, namely November 6, 1991, and therefore the Plaintiffs were statute barred from bringing their claim. The Plaintiffs, meanwhile, argued that since a Will speaks from death, the limitation period began to run on Mr. Ryczkowski’s passing, which was July 16, 2018, and therefore they were within their rights to bring their claim.[9]
Justice Myers provides an in-depth analysis of the purpose of the Limitations Act, 2002, which was enacted as part of a reform of limitations law in response to the common law’s broad adoption of the “discoverability principle” as the driver of the commencement of limitation periods. The issue identified by the legislature was that the rule could effectively extend indefinitely the period for which potential defendants remain at risk of being sued. As highlighted by Chief Justice Strathy in Levesque v. Crampton Estate,[10] main point of limitations statutes from a public policy perspective is to avoid the risk of indeterminate liability.[11]
In Tessaro, liability was claimed based on the Defendant’s poor drafting of the Impugned Will. Using the modern principles of statutory interpretation, Justice Myers could not find that the “act or omission on which liability is based” began on Mr. Ryczkowski’s date of death, given he died more than 25 years after the Defendant last dealt with the Impugned Will.[12]
Justice Myers also noted that there is no omission in this case. An “omission” in tort law refers to an act not done when a person is under a duty to act. Omissions are actionable where the defendant had a duty to act and failed to do so. An omission does not refer to the quality of an act but, rather, to a failure to act when one was duty-bound to act.[13]
Decision
Accordingly, Justice Myers found that the Plaintiffs were statute barred from bringing their claim on the basis that the limitation period arose from the date of the drafting of the Impugned Will, not Mr. Ryczkowski’s date of death.
Justice Myers noted the importance that the law places on the ability of beneficiaries to sue lawyers for negligently drafting wills. Doing so properly holds lawyers to account and protects the integrity of the legal system of inheritance and succession. Generally speaking, people are entitled to rely on wills to carry out the intentions of their deceased parents, relatives, or benefactors. People may have waited their whole lives for an inheritance. They should not be disappointed by actionable negligence of a lawyer.[14]
The Plaintiffs submitted that if the 15-year limitation period applies, people who do the responsible thing and obtain a will while young will be penalized. The Defendant, by contrast, argued that perhaps wills lawyers should be counselling people to check their wills at least every 15 years. Ultimately, while recognizing the perceived unfairness with the result, Justice Myers noted that the main role of the court is to interpret legislation. Moreover, that the act of creating exceptions to the ultimate limitation period due to perceived unfairness is the role appropriately governed by Legislature, not the judiciary.[15]
Concluding Comments
The decision in Tessaro is informative to estate planning lawyers, litigators and beneficiaries as to the relevant limitation period that applies to claims brought against lawyers for negligently drafted wills.
—
[1] Tessaro v. Gora, 2024 ONSC 198 (“Tessaro”).
[2] Tessaro at paras 11 – 16.
[3] Tessaro at para 19.
[4] Tessaro at para 20.
[5] Tessaro at para 21.
[6] Tessaro at paras 23 and 24.
[7] Limitations Act, 2002, S.O. 2002, c. 24, Sched. B
[8] Tessaro at paras 30 – 32.
[9] Tessaro at para 31.
[10] 2017 ONCA 455 (CanLII)
[11] Tessaro at paras 42 – 55.
[12] Tessaro at para 59.
[13] Tessaro at para 60.
[14] Tessaro at para 94.
[15] Tessaro at paras 95 and 96.
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