Date of Death: Determining commencement of the limitation period
In our last article with Law360 Canada, Palak Mahajan and I wrote about the relevance of the recent decision of Ingram v. Kulynych Estate, 2024 ONCA 678, with respect to limitation periods. Limitation periods continue to be an overarching factor that plays one of the most important roles of every file/case that comes through the door. Another case that exemplifies the significance of limitation periods is Shannon v. Hrabovsky, 2024 ONCA 188 (Shannon), by the Court of Appeal, which addressed the issue of when the discoverability principle applies to estate claims and whether the limitation period runs from the date of death of the testator.
Background
Andrew Hrabovsky (the deceased) died on Nov. 15, 2014. The deceased had two children: Gayle Shannon (the respondent) and Glenn Hrabovsky, who was one of the applicants. The other applicant was the deceased’s brother, Michael Hrabovsky (collectively referred to as the applicants).
During the deceased’s lifetime, he executed a series of wills, as stated below:
- In April 2002: the deceased left equal bequests of 10 per cent of the residue of his estate to
Gayle’s and Glenn’s children and divided the remainder of the estate equally between Gayle
and Glenn (the 2002 will). - In November 2006: the deceased left a favourable bequest to Gayle in which he left her the
title to the deceased’s Toronto residence. The deceased also made Glenn a joint tenant on a
cottage property. Gayle was also added as an estate trustee along with Glenn and Michael (the
“2006 will”). - In July 2007: the deceased disinherited Gayle and removed her as an estate trustee. The
bequests made to Gayle and Glenn’s children were increased from 10 per cent to 15 per cent. The bequest of the Toronto property to Gayle was removed and the balance of the residue of
the estate was left to Glenn solely. If Glenn predeceased the deceased, the balance of the
residue was to pass entirely to Glenn’s children rather than between Glenn’s children and
Gayle’s children. The will also mentioned that the deceased forgave a debt that was owed by
Gayle. A specific bequest to Michael was increased from $30,000 in the 2022 will and $35,000
in the 2006 will to now $100,000 (the 2007 will).
The Application
After the deceased’s passing on Nov. 15, 2014, Gayle issued an application against the estate challenging the validity of the 2007 will, stating that the deceased lacked the testamentary capacity to execute the 2007 will on Dec. 23, 2016 (two years and a week after the deceased’s passing). The court found that the limitation period did not run from the date of death of the deceased given
that Gayle was not aware of the existence and contents of the 2007 will. Gayle had suspicions of a will, but this was not confirmed until the 2007 will was provided to Gayle by the lawyer. Based on this, Gayle rebutted the presumption of discoverability under s. 5(2) of the Limitations Act which states:
The Discoverability principle:
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or
omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would
be an
appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of
the person with the claim first ought to have known of the matters referred to in clause
(a). 2002, c. 24, Sched. B, s. 5 (1).
The application judge at the time granted the application, set the 2007 will aside and restored the
2006 will as the deceased true Last Will and Testament.
The appeal
The respondents appealed the application judge’s decision based on two issues:
(1) Gayle was statute-barred by the two-year limitation period pursuant to s.4 of the Limitations Act,
2002, S.O. 2002, c. 24, Sched. B (Limitations Act):
Section 4 of the Limitations Act states:
The Basic Limitation Period:
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of
a claim after the second anniversary of the day on which the claim was discovered.
(2) The application judge provided too much weight on insufficient evidence, and they sought to
introduce fresh evidence — which was a letter from Gayle in December 2014 revealing she was aware
of a 2007 will two years before the issuance of the application.
The Court of Appeal dismissed the respondents’ appeal to adduce fresh evidence and so the Court of
Appeal considered what the true limitation period is.
Positions of the parties
Gayle’s position with respect to the limitation period appeal made by the respondents was that she
was not made aware of the existence of a later will after the 2006 will until January 2015 when she
was provided with the 2007 will by the lawyer for the estate.
The respondents’ position was that given this fresh evidence of the letter from 2014 where it is
demonstrated that Gayle was aware of a possible existence of a will in 2007, the date of the
limitation period would be changed.
Analysis of the Court of Appeal
In determining whether to include the fresh evidence, the Court of Appeal considered the test of
introducing fresh evidence in accordance with paragraph 134(4)(b) of the Courts of Justice Act,
R.S.O. 1990, c. C.43, in that it must show that the proposed evidence (1) is credible, (2) could not
have been obtained by reasonable diligence before trial or application and (3) if admitted, would
likely be conclusive of an issue in the appeal. The Court of Appeal concluded that the letter the
respondents wished to introduce as fresh evidence failed the last two prongs of the test and was not
satisfied that the respondents acted with reasonable due diligence when they failed to include this
letter as evidence to the application judge.
Given that the Court of Appeal found that the fresh evidence would not be conclusive of the limitation
issues, the Court of Appeal considered the facts on the face of the case. The Court of Appeal
accepted the fact that the application judge considered the affidavit evidence of Gayle in that she was
not made aware of the existence and contents of the 2007 will but was aware that Gayle had
suspicions that there was another will made after the 2006 will.
The Court of Appeal asserted that the fact that Gayle had suspicions or was made aware that the
deceased executed the 2007 will was not sufficient to commence a will challenge. The Court of
Appeal concluded that Gayle was not made aware of the 2007 will’s contents, and it would have been
unreasonable for her to commence litigation without full knowledge of the 2007 will.
Conclusion
The normal limitation period for a party to bring a will challenge after a person’s passing is typically
within two years of the date that a party discovers they have a basis to challenge a will. This
significance of this case provides further clarification that not only does the limitation period run from
when a party discovers they have a basis to challenge a will but also based on the fact that the party
must have full knowledge of the contents of the will, not just the existence of the will and that it is
not always from the date of death.
This article was originally published by Law360 Canada, part of LexisNexisCanada Inc.