What is the Limitation Period for Challenging a Will?

Leibel v. Leibel¹ stands for the proposition that the two-year limitation period runs from the date of the testator’s death, subject to the discoverability principle.² But what about section 16(1)(a) of the Limitations Act, 2002? That provision states that there is no limitation period in respect of a proceeding for a declaration, if no consequential relief is sought. This raises an important question: can a party avoid an expired limitation period by framing a claim as declaratory relief? The answer can be found in Ontario case law that clearly distinguishes between genuinely determining legal rights and using declaratory wording to pursue an otherwise statute-barred claim.

Section 38(3) of the Trustee Act³ requires actions involving deceased persons to be brought within two years of death. Unlike the general limitation period under the Limitations Act, 2002, there is “no temporal elasticity possible when the pivotal event is the date of a death.”⁴ However, Section 16(1)(a) of the Limitations Act, 2002⁵ creates an exception, establishing no limitation period for “a proceeding for a declaration if no consequential relief is sought.”

In Leibel v. Leibel, the applicant sought to invalidate wills and requested orders affecting estate administration after the primary will was probated and assets distributed.⁶ The court rejected reliance on section 16(1)(a), holding that seeking orders to undo administrative steps or obtain remedies against parties constitutes consequential relief. Because judicial declarations are stand-alone determinations, courts look at the practical outcome: actions seeking to reverse a completed estate administration remain subject to the two-year clock.

Piekut v. Romoli, distinguished Leibel.⁷ Here, the applicant sought only to determine the validity of codicils to clarify rights, without seeking to revoke probate, remove trustees, or recover damages. Since no party had propounded the will or completed administration, the application fell within section 16(1)(a) as pure declaratory relief.

A declaration may nevertheless have practical consequences without constituting consequential relief. In McMurtry v. McMurtry, the court explained that legal consequences naturally flowing from a declaration do not themselves defeat the exemption. Determining ownership of shares would affect the administration of the estate, but the declaration did not itself compel their transfer.⁸

The distinction is between establishing legal rights and obtaining orders that enforce them or grant further remedies. In Bristol v. Bristol,⁹ the applicant argued that her will challenge sought declaratory relief and was therefore exempt from a limitation period under section 16(1)(a). The court rejected this characterization because the applicant sought substantive orders concerning the estate’s administration, including the replacement of the estate trustee, an accounting, and indemnification for expenses. The court noted that will challenges inherently require meeting threshold tests with supporting evidence regarding testamentary capacity and undue influence, meaning they cannot be framed as standalone declaratory relief.

The Court of Appeal in Kyle v. Atwill, clarified, “… A declaratory judgment is a “formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs — it is [page70] restricted to a declaration of the parties’ rights and does not order any party to do anything.” The Court further explained that seeking declaratory and consequential relief in the same proceeding does not automatically defeat the exemption under section 16(1)(a). A genuine declaratory claim may remain exempt, while the associated substantive remedy remains subject to its own limitation period.¹⁰ Combining distinct claims does not alter the limitation period of each.

The court will look at the substance of the relief sought as seen in Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd,¹¹ where the court reaffirmed that section 16(1)(a) must be narrowly construed. Although the plaintiffs styled their claim as seeking a declaration regarding business interests, their true objective was compensatory payments. The request for declaratory relief had no independent, legitimate utility other than to lay the groundwork for a statute-barred compensation claim; it was found to be, in substance, a claim for compensatory relief.

Most recently, in Roberts v. Cowie; Cowie v. Roberts,¹² the Superior Court allowed a pre-probate challenge after two years as the will had not been probated, no executor was appointed, and no assets were distributed. The court stated:

Probate proceedings are in rem proceedings undertaken for the benefit of the public at large and, therefore, do not generate claims to remedy an injury, loss or damage that occurred as a result of an act or omission. In his objection, Mr. Cowie is not claiming he has suffered an injury, loss or damage arising from an act or omission of Mr. Roberts. Rather, he is requiring Mr. Roberts to prove the validity of the December Will. I find that the Act does not apply to proceedings seeking to declare a will to be valid or invalid.

Because the application addressed only testamentary validity and necessary procedural steps, it was not barred as a claim for substantive remedies.

Seeking declaratory relief may allow an estate proceeding to continue after two years, but it is not a general means of avoiding an expired limitation period. Describing a claim as seeking a declaration does not preserve an otherwise expired right to recover money, property, or another substantive remedy. The answer therefore depends on the nature of the proceeding, the substance of relief requested, and the limitation rules that apply.

So the question remains, why bother going ahead with a proceeding seeking a declaration as to the validity of a testamentary document if the applicant is not seeking consequential relief?

Old Will or Intestacy

By way of example, a judge may declare a testamentary document to be invalid.  That means that the executor appointed under that particular will is no longer the executor and the bequests would be governed by a previous valid will or, if there is no will, by the laws of intestacy. That’s exactly what happened in Piekut v. Romoli. Here are the relevant excerpts from the judgment:

42. “…..she is seeking relief in the form of a declaratory judgment. Specifically, are the codicils valid or invalid? She submits that she remains neutral in this determination, but asserts that the declaratory judgment is essential. Without this assistance from the court, the Executors and Trustees cannot agree on the testamentary documents to be submitted to the probate process. In this regard, Helen relies on paragraph 16(1)(a) of the Limitations Act and asserts that she is seeking declaratory relief only and not seeking consequential relief, e.g., an order compelling the Executors and Trustees of her late father’s estate to deal with the Dundas St. properties in a particular way. Helen relies on Skylark Holdings Ltd. v. Minhas, 2017 ONSC 1328 and McMurtry v. McMurtry, 2016 ONSC 2853 (“McMurtry”) in support of her position…”
43. “I find that Helen’s question with respect to the validity of the codicils is restricted to declaratory relief. She is not seeking consequential relief. She is not asking the court to determine the ultimate beneficiary of Dundas St. properties or to vest the properties in any particular beneficiary or beneficiaries.”
44. “Following the declaration as to whether the codicils are valid or not, the next steps would be administrative. The Executors and Trustees of the respective estates of each Mr. and Mrs. Wroblewski would apply for a Certificate of Appointment of Estate Trustee with a Will, if required, and administer the respective estates in accordance with the deceased’s last will (including any valid codicil). Any further order of the court that may be required would arise in the context of the due administration of the estate and not as a consequence of the declaratory relief sought.”

What is the practical result of successfully declaring a testamentary document invalid? As set out in Piekut v. Romoli, a challenger may seek strict declaratory relief without requesting consequential remedies or waiting for the will to be propounded.¹³ The practical utility is straightforward: it conclusively determines the validity of the document, defines the parties’ respective rights, and preemptively resolves future disputes. However, does that put the will challenger any further ahead?

Regardless of the time frame, it can be 23 months after the date of death or 23 years, if the assets were undistributed then the beneficiaries under the last valid will or on intestacy as the case may be, should receive their rightful bequests. It is just an administrative matter. However, what happens when the assets have already been distributed?

Archie Rabinowitz addressed this question in his paper entitled, “ Limitation Periods in Estate Litigation”¹⁴ where he says, “….if a distribution is made to a beneficiary and the will is then found to be invalid, an action can be started to recover the distribution from the beneficiary. This action would be subject to the limitation periods of the Limitations Act.….”.  So if Mr. Rabinowitz is correct, then seeking a declaration under these circumstances would be an exercise in futility.  Moreover, the concern over certainty is high in the minds of our courts. As explained by Greer J. in paragraph 52 of Leibel v. Leibel,

In my view, with the passage of the new Act in 2002, the Legislature placed a two-year limitation on the bringing on of actions, subject to the discoverability principle, in order to prevent exactly what Blake is trying to do, that is, circumvent the limitation by claiming, late in time, that the 2011 Wills were invalid. To say that every next-of-kin has an innate right to bring on a will challenge at any time as long as there are assets still undistributed or those that can be traced, would put all Estate Trustees in peril of being sued at any time. There is a reason why the Legislature replaced the six-year limitation in favour of a two-year limitation.

But, what if the reason for the invalidity of the testamentary document in question was fraud?

The court in Guerin v The Queen¹⁵ explained as follows:

“It is well established that where there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run until the plaintiff discovers the fraud, or until the time when, with reasonable diligence, he ought to have discovered it. The fraudulent concealment necessary to toll or suspend the operation of the statute need not amount to deceit or common law fraud….”

Of course, the issue of fraud is a bit of red herring. For if there was fraudulent concealment then avoiding the limitation period would not be the motivation for seeking  a declaration because fraud generally stops the limitation period clock from ticking. Assuming the request for a declaration is successful, and where the assets have already been distributed, another option to consider is bringing an application for an accounting. There is no limitation period applicable for a request for an accounting.¹⁶ Even though the person named as executor under the false will was not the genuine estate trustee, he was a trustee de son tort and his actions would still be open to court scrutiny.¹⁷ Arguably, if the executor acting under the false will honestly relied on the testamentary document and in good faith believed it to be genuine it is doubtful any court would find them liable. However, if the executor de son tort knew or ought to have known that there were reasonable suspicions as to the validity of the testamentary document and did not seek court directions then that executor may very well be held personally liable.

Declaratory relief may leave the door open, but how far it permits a challenger to proceed will depend on the circumstances. The question is therefore not simply whether a will can still be challenged, but whether the relief that remains available can achieve the challenger’s objective.