Applicant’s Claims Barred By 2-Year Limitation Period
Simko v. Pirner, 2025 ONSC 6397 (“Simko”), addressed the applicable limitation period for an application to set aside transactions made by a deceased individual to family members on the basis of the presumption of resulting trust. [1]
Background
Anna passed away on January 9, 2022, and was predeceased by her two adult children, Thomas (the “Applicant”), Diane (the “Respondent”), and the Respondent’s daughter, Samantha. Pursuant to Anna’s Last Will and Testament executed on June 19, 2018, the Applicant and Respondent were jointly appointed as Estate trustees of Anna’s Estate (the “Estate”) and were also the sole beneficiaries. [2]
The Applicant filed two applications: one to remove Diane as estate trustee and another to challenge various transactions made by Anna to the Respondent and to the Respondent’s daughter, Samantha.[3]
The Applicant alleged that Diane had made transfers worth a total of $689,000 throughout 2016 – 2019. The Applicant also argued that there were various transfers made to Samantha between 2009 – 2016 that were also subject to the presumption of resulting trust.[4] The Applicant did not argue that Anna had any issues surrounding capacity at the time these transfers were made.[5]
In Simko, two motions were brought before the court. The first motion involved the Applicant seeking disclosure, while in the second motion, the Respondent sought a declaration that the Applicant’s claims were barred by the applicable limitation period.[6]
The Parties Position
The Respondent argued that the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitation Act”), applied because all the disputed transactions were known to Anna when she made them, and there was no issue of discoverability. On this basis, the Respondent submitted that the limitation period had expired.[7]
The Applicant contended that section 38 of the Trustee Act, R.S.O. 1990, c. T. 23 (The “Trustee Act”), affords an estate trustee two years from the date of death to advance a claim relating to the Deceased’s personal property and that, on this basis, his applications were timely. [8]
Analysis
The court determined that the Applicant’s claims were subject to the two-year limitation period under the Limitations Act because the transactions were known to Anna during her lifetime, and no discoverability issue was raised.[9] On this basis, the Trustee Act did not apply.
The court stated that had Anna passed away within two-years of the impugned transactions, ss. 38(1) and ss.38(3) of the Trustee Act would’ve applied, allowing the Applicant, as Estate trustee, to pursue claims on the Estates behalf.[10]
The court noted that transfers of property occurring through the right of survivorship trigger the limitation period at the time of the transfer, as recognized in the landmark decision of Pecore v. Pecore, 2007 SCC 17.[11] The court went on to state the following:
[53] My determination grants repose for estate trustees such that they need not conduct exhaustive backwards investigations into the deceased’s financial affairs seeking to undo every transaction that occurred within the ultimate limitation period before the estate can be wound up. In my view, this determination accords with the policy considerations described by Roberts J.A. in Ingram. Estates can be administered with the same level of finality and in this instance, the estate is precluded from creating indefinite claims in its favour as against those who have long since completed their transactions with the deceased.[12]
The court also asserted that if Anna’s capacity had been lacking or in doubt at the time of the transfers, fraudulent concealment could have been raised by the Applicant, and therefore the discoverability principle would’ve applied.[13] However, those facts were not present in Simko.
The court dismissed the Applicant’s claims regarding the impugned transfers as statute-barred by the two-year limitation and, on that basis, found it unnecessary to address the Applicant’s disclosure request.
Concluding Comments
Simko confirms that where inter vivos transactions were known to the deceased, issues of capacity were not alleged, and no issues of discoverability were present, the two-year limitation under the Limitations Act may govern.
—
[1] Simko v. Pirner, 2025 ONSC 6397
[2] Ibid at para 3
[3] Ibid at para 4
[4] Ibid at para 7
[5] Ibid at para 13
[6] Ibid at para 5
[7] Ibid at para 11
[8] Ibid at para 12
[9] Ibid at para 21
[10] Ibid at para 44
[11] Ibid at para 52
[12] Ibid at para 53
[13] Ibid at para 60
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Written by: Gabriella Banhara
Posted on: November 28, 2025
Categories: Commentary, WEL Newsletter
Simko v. Pirner, 2025 ONSC 6397 (“Simko”), addressed the applicable limitation period for an application to set aside transactions made by a deceased individual to family members on the basis of the presumption of resulting trust. [1]
Background
Anna passed away on January 9, 2022, and was predeceased by her two adult children, Thomas (the “Applicant”), Diane (the “Respondent”), and the Respondent’s daughter, Samantha. Pursuant to Anna’s Last Will and Testament executed on June 19, 2018, the Applicant and Respondent were jointly appointed as Estate trustees of Anna’s Estate (the “Estate”) and were also the sole beneficiaries. [2]
The Applicant filed two applications: one to remove Diane as estate trustee and another to challenge various transactions made by Anna to the Respondent and to the Respondent’s daughter, Samantha.[3]
The Applicant alleged that Diane had made transfers worth a total of $689,000 throughout 2016 – 2019. The Applicant also argued that there were various transfers made to Samantha between 2009 – 2016 that were also subject to the presumption of resulting trust.[4] The Applicant did not argue that Anna had any issues surrounding capacity at the time these transfers were made.[5]
In Simko, two motions were brought before the court. The first motion involved the Applicant seeking disclosure, while in the second motion, the Respondent sought a declaration that the Applicant’s claims were barred by the applicable limitation period.[6]
The Parties Position
The Respondent argued that the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitation Act”), applied because all the disputed transactions were known to Anna when she made them, and there was no issue of discoverability. On this basis, the Respondent submitted that the limitation period had expired.[7]
The Applicant contended that section 38 of the Trustee Act, R.S.O. 1990, c. T. 23 (The “Trustee Act”), affords an estate trustee two years from the date of death to advance a claim relating to the Deceased’s personal property and that, on this basis, his applications were timely. [8]
Analysis
The court determined that the Applicant’s claims were subject to the two-year limitation period under the Limitations Act because the transactions were known to Anna during her lifetime, and no discoverability issue was raised.[9] On this basis, the Trustee Act did not apply.
The court stated that had Anna passed away within two-years of the impugned transactions, ss. 38(1) and ss.38(3) of the Trustee Act would’ve applied, allowing the Applicant, as Estate trustee, to pursue claims on the Estates behalf.[10]
The court noted that transfers of property occurring through the right of survivorship trigger the limitation period at the time of the transfer, as recognized in the landmark decision of Pecore v. Pecore, 2007 SCC 17.[11] The court went on to state the following:
[53] My determination grants repose for estate trustees such that they need not conduct exhaustive backwards investigations into the deceased’s financial affairs seeking to undo every transaction that occurred within the ultimate limitation period before the estate can be wound up. In my view, this determination accords with the policy considerations described by Roberts J.A. in Ingram. Estates can be administered with the same level of finality and in this instance, the estate is precluded from creating indefinite claims in its favour as against those who have long since completed their transactions with the deceased.[12]
The court also asserted that if Anna’s capacity had been lacking or in doubt at the time of the transfers, fraudulent concealment could have been raised by the Applicant, and therefore the discoverability principle would’ve applied.[13] However, those facts were not present in Simko.
The court dismissed the Applicant’s claims regarding the impugned transfers as statute-barred by the two-year limitation and, on that basis, found it unnecessary to address the Applicant’s disclosure request.
Concluding Comments
Simko confirms that where inter vivos transactions were known to the deceased, issues of capacity were not alleged, and no issues of discoverability were present, the two-year limitation under the Limitations Act may govern.
—
[1] Simko v. Pirner, 2025 ONSC 6397
[2] Ibid at para 3
[3] Ibid at para 4
[4] Ibid at para 7
[5] Ibid at para 13
[6] Ibid at para 5
[7] Ibid at para 11
[8] Ibid at para 12
[9] Ibid at para 21
[10] Ibid at para 44
[11] Ibid at para 52
[12] Ibid at para 53
[13] Ibid at para 60
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