In Ontario, estate litigation is governed by several critical deadlines that must be adhered to in order to protect legal rights. Missing these deadlines can result in the inability to pursue claims or defend against them. This article outlines the key limitation periods for common estate disputes and how Ontario courts handle delays.

Will Challenges

The Limitations Act, 2002 establishes a two-year limitation period for most estate-related claims, including actions to challenge the validity of a will. This was confirmed in the case of Leibel v. Leibel, 2014 ONSC 4516 (CanLII), where the court emphasized the importance of adhering to this timeframe (para. 3). Challenges to a will can be based on grounds such as lack of testamentary capacity, undue influence, or improper execution.

Dependant Support Claims

Under the Succession Law Reform Act (SLRA), dependants who believe they have not been adequately provided for in a will can apply for support. Generally, these claims must be made within six months of the issuance of the Certificate of Appointment of Estate Trustee. This six-month timeframe is highlighted in the Estate of Ingrid Loveman, Deceased, 2016 ONSC 2687 (CanLII), para. 43. However, courts have the discretion to extend this period under section 61(2) of the SLRA, particularly if a portion of the estate remains undistributed, as discussed in Assaf (Re), 2007 CanLII 50869 (ON SC), paras. 18-21. In Gefen v Gefen, 2015 ONSC 7577 (CanLII), paras. 22-24, the court clarified that if no Certificate of Appointment of Estate Trustee is issued, the limitation period does not begin.

Passing of Accounts

There is no specific limitation period for compelling an attorney for property to pass accounts. However, undue delay can lead to complications. In Van Ruymbeke v. Van Ruymbeke, 2023 ONSC 1212 (CanLII), paras. 32-41, the court discussed its discretionary power to order an accounting under the Substitute Decisions Act, 1992. The court distinguishes between applications made by an attorney and those compelling an attorney to account, noting potential limitation period implications for the latter. The case of Shewa v. Shewa et al, 2025 ONSC 959 (CanLII), paras. 22-23, demonstrates how courts manage delays in passing accounts, often emphasizing the need for timely compliance with court orders.

Family Law Act Elections

A surviving spouse may elect to take their entitlement under Part I of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) or under the deceased spouse’s will. This election must be made within six months of the deceased spouse’s death (FLA, s. 6(1), (10)). If no election is made, the surviving spouse is deemed to have elected to take under the will (FLA, s. 6(11)).

The court may extend the time for making an election under s. 2(8) of the FLA. This requires the applicant to demonstrate apparent grounds for relief, that the delay was incurred in good faith, and that no person will suffer substantial prejudice (FLA, s. 2(8)). In Trezzi v. Trezzi, 2019 ONCA 978 (CanLII), the court granted an extension because the surviving spouse was unaware of her rights until consulting a lawyer, and the estate could not be distributed until other litigation was resolved (paras. 3-10, 20-23). However, in Mihalcin v. Templeman, 2018 ONSC 5385 (CanLII), the court denied an extension because the applicant did not provide evidence of entitlement to an equalization payment or a good faith explanation for the delay (paras. 4, 7, 30, 35). Similarly, in Zhang v. Liu, 2024 ONSC 2476 (CanLII), the court denied an extension due to lack of evidence supporting an equalization payment and a good faith delay (paras. 2-7, 41-42).

The right to elect under the FLA is personal to the surviving spouse. In Rondberg Estate v. Rondberg Estate, 1989 CanLII 4153 (ON CA) (CanLII), the court held that an executor could not make the election after the surviving spouse’s death (p. 147). However, an attorney under a valid power of attorney may elect on behalf of an incapacitated surviving spouse, as demonstrated in Anderson v. Anderson Estate, 1990 CanLII 6676 (ON SC) (CanLII), where the attorneys elected for equalization on behalf of the incapacitated spouse (para. 74 O.R. (2d) 58).

Court’s Approach to Delays

Ontario courts strive to balance the protection of estates from stale claims with ensuring fair access to justice. While limitation periods are strictly enforced, courts have discretion to extend them in certain circumstances, particularly under section 61(2) of the SLRA for dependant support claims. In Appleyard v. Zealand, 2022 ONCA 570 (CanLII), paras. 55, 75, the court considered vexatious conduct and abuse of process when addressing delays, and may dismiss claims deemed to be an abuse of process, even if limitation periods have not expired. In Vitale v. Martin et al and Martin v. Vitale et al, 2013 ONSC 5938 (CanLII), paras. 23, 29, the court directed an expedited trial to resolve limitation period issues and other estate matters, demonstrating a proactive approach to managing delays.

Understanding and adhering to these limitation periods is crucial for protecting legal rights in estate litigation. If involved in an estate dispute, it is advisable to act promptly to ensure compliance with all relevant deadlines.