The importance of limitation periods in estate litigation: Balancing Interests Years After the Fact
Tessaro v. Gora, 2025 ONSC 198: Balancing Interests Years After the Fact
We have discussed the importance of limitation periods in estate litigation: see our post link? https://dicksonappell.com/litigants-beware-the-standard-limitation-period-applies-to-constructive-trust-claims-against-estates/
In January 2025, the Superior Court of Justice considered a motion related to claims filed by two sisters and two nieces of Leopold Ryczkowski. Leopold passed away on July 16, 2018. He had signed a will on November 6, 1991 (“the Will”), over 26 years before he died. The Will states:
To such of my sisters living at the time of my death, I give whatever real estate that I own or that may be in my possession at the time of my death, in equal shares per stirpes. (emphasis added by the Court)
When Leopold died, he was survived by two sisters, Virginia and Irene, but his third sister, Monica, had predeceased him. Monica had two daughters, Kim and Lynn. Lynn and Irene were named as Leopold’s executors, the relevance of which is discussed below.
The wording of the Will created an ambiguity: did Leopold only intend to benefit his sisters who were alive at the date of his death? Or did the words “per stirpes” mean that although Monica had died, any of her children “stepped into” her shoes, and inherited her portion of Leopold’s Estate in her place? Leopold’s surviving sisters commenced an application in Court in June 2019, asking the Court whether Leopold’s Estate was theirs to share 50/50, or whether the Estate was to be divided in three, and shared with Monica’s children. The beneficiaries settled their dispute about distribution of the Estate out of Court in 2024, but maintained that because of negligent drafting, they received “less than the deceased intended for them to receive” (at paragraph 25).
In December 2020, over two years after Leopold’s death, nieces Kim and Lynn filed a claim against the lawyer who drafted Leopold’s Will, John Gora. Within days, sisters Virginia and Irene also filed a negligence claim against the lawyer (Irene has since passed away). The alleged negligent act was the wording John Gora used in drafting Leopold’s 1991 Will.
John Gora filed a motion to dismiss the actions against him, on the basis that they were not filed within the timeframe established by the Limitations Act of Ontario. The January 2025 decision is the determination of the lawyer’s motion.
Under s.15 of the 2002 Limitations Act of Ontario, there is an “absolute” limitation period to claims that are commenced “after the 15th anniversary of the day on which the act or omission on which the claim is based took place.”
The lawyer, in defending himself against the negligence claim, argued that the date in question is the date of the alleged negligence, which is the date a will is drafted. Under the 15-year rule (with some adjustment for a transitional period related to the passage of the 2002 Limitations Act), the negligence claim had to be started before January 1, 2019. The plaintiff beneficiaries claimed that the timeline to commence a claim does not begin until the date of death. As the Court notes, in this case there were many years between the two key points in time: “the testator die[d] more than 25 years after the drafting lawyer touched the will” (at paragraph 59).
In its analysis of limitation periods, the Court discusses the purpose of them, both from the standpoint of litigants who are at risk of losing a right to seek a remedy, especially if they are not yet aware of a possible claim, and defendants, who should not indefinitely face the risk of being sued. It makes a clear statement of the law, that in the case of will drafting, the “act or omission on which the claim is based” is the act of drafting, and the relevant time is the time when the lawyer acts, not the date of death. The Court confirms as well that the beneficiaries knew as of November 2018 that there were possible problems with the wording of the Will, but they did not file a claim against the lawyer at that time.
The Court observes that s.38 of the Trustee Act imposes a two-year limitation for claims that an executor can file against someone for injury or damage to the deceased. Lynn and Irene, in their capacity as executors, had 2 years to maintain a claim on Leopold’s behalf, but only for damages or injuries that Leopold could have brought himself. They did not do so, and the Court did not permit the executors to amend their pleadings to try to bring a claim against the lawyer on behalf of the Estate, because claims against the lawyer expired as of January 1, 2019.
The Court concludes with interesting commentary on competing values when it comes to legislation and access to justice. It notes that barring a claim against a lawyer has the effect of penalizing beneficiaries who were not involved in estate planning, and who may have “waited their whole lives for an inheritance,” only to be disappointed (at paragraph 94). Because a person can change their will at any time before their death, provided they retain capacity, a beneficiary cannot know if they are disappointed by a will until a death occurs, but that may be many years after a will is drafted, so they may well be statute-barred for actions they can commence. The Court concludes that its only role is to interpret the legislation as enacted, by considering the words of the statute in question, to “implement the intention of the legislator…as part of the overall scheme of the statute” (at paragraph 37). The Court should not interfere with any social policy considerations that are “the function of the peoples’ elected representatives in the Legislature rather than an unelected judge of this court” (at paragraph 97).
The beneficiaries’ negligence claims were dismissed, with costs of $30,000 to the defendant lawyer.
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