May 22, 2019

Estate Litigation and Limitation Periods

G+G Estate Litigation

ESTATE LITIGATION AND LIMITATION PERIODS

In Ontario, there is a general two-year limitation period in which a person can bring a claim in court on a civil matter. Whether or not this limitation period applies to estate matters can be dependent upon the situation at hand.

The two year limitation period is subject to a concept called ‘discoverability’. This means that the two year limitation period does not start to run until the time that a person knows, or reasonably could have known, that the cause of action occurred.

How limitation periods apply to estate issues can vary. For instance, a beneficiary of an estate can require an executor to pass their accounts in court so that everyone with an interest in the estate can see how the estate assets have been handled. A question that has come up is, under the Limitations Act in Ontario, does a beneficiary have to request a passing of accounts within 2 years of the date of death of a person, and every two years thereafter, in order to object to anything that the executor is doing with the estate assets?

The general answer for this question is that it is up to an executor of an estate to pass their accounts from time to time and a beneficiary does not have to request that an executor pass their accounts every two years in order to preserve the right to object to the accounts or claim damages under section 49 of the Estates Act. However, once accounts have been prepared for an estate, it is reasonable to expect beneficiaries to make a claim for damages within two years of that date.

Courts in Ontario have found that there is some responsibility on the part of estate beneficiaries to abide by the two-year limitation period if an executor of an estate dies before they have ever passed their accounts. In such a situation, beneficiaries must request that the accounts be passed within 2 years of the date of death of the executor if they wish to protest anything the deceased executor did with the estate.

CONTACT US

Feel free to contact us at any point for assistance or advice with respect to Estate Law, Estate Planning or Estate Administration or Estate Litigation. We may be reached at 705.435.4339 / 1-877-85LEGAL (1-877-855-3425) or contact us via email.