The 2014 Ontario Superior Court decision in Leibel v. Leibel1 is widely considered to have established that the basic two-year limitation period in the Limitations Act, 2002 (the “Limitations Act”)2 applies to proceedings challenging the validity of a will in Ontario. In this article we argue the opposite: the Limitations Act does not apply to will challenge proceedings.
Historically, statutory limitation periods have not applied to will challenges. Statutory limitation periods apply to causes of action, which a will challenge is not. There was never any suggestion that Ontario’s former Limitations Act3 (the “former Act”) applied to will challenges.
The coming into force of the Limitations Act abolished different limitation periods for different categories of causes of action by introducing one basic and one ultimate limitation period. It did not expand the application of statutory limitation periods to proceedings that, like a will challenge, are without a cause of action.4
The Court of Appeal for Ontario has yet to consider directly the application of the Limitations Act to will challenges. Our aim is to situate the limitation of will challenges in its historical context; demonstrate how the coming into force of the Limitations Act was not intended to, and did not, impose a limitation period on will challenges where none had existed before; explain the problems that arise from applying the Limitations Act to a will challenge; and critique Leibel and the case law following it.
1. (2014), 2 E.T.R. (4th) 268, 2014 ONSC 4516 (Ont. S.C.J.[Estates List]).
2. S.O. 2002, c. 24, Sched. B (“Limitations Act”).
3. R.S.O. 1990, c. L.15. A substantial portion of this statute was repealed and replaced by the new Limitations Act; provisions relating to real property remain and the statute has been renamed Real Property Limitations Act.
4. The cause of action is the “factual situation the existence of which entitles one person to obtain from the court a remedy against another” — see p. 202.