When is a claim discovered for the purposes of a Will Challenge?

In Shannon v Hrabovsky, 2024 ONCA 120, the Court of Appeal upheld an important ruling about the discoverability principle as it relates to limitation periods in estates litigation. The Court will assess at what date a litigant had knowledge of the facts related to the essential element of their claim. In this case, the essential information the litigant required before she could determine whether she had a claim was a copy of the will that was being propounded. Confirmation that the document existed, or a general understanding of its contents, were not sufficient to trigger the limitation period in which to bring her claim.

The Facts:

Andrew Hrabovsky died on November 15, 2014. He had two adopted children, Gayle and Glenn. Andrew made three wills during his lifetime, in 2002, 2006 and 2007. Andrew’s 2007 Will disinherited Gayle entirely, largely in favour of her brother Glenn, including removing an express gift to her of a house, and also removed her as an estate trustee.

On December 23, 2016, Gayle filed an application to challenge the validity of Andrew’s 2007 Will (the “Application”). She argued that there were suspicious circumstances at the time Andrew made his 2007 Will, and asserted that he lacked testamentary capacity. The alleged suspicious circumstances included Andrew’s medical status at the time and a call he made to Gayle expressing concern about a document he recently signed, the contents of which he was unaware.  In addition, in 2008, after the 2007 will removed the gift of a house to Gayle, Andrew had given Gayle the original deed to his house, and Gayle argued that this was consistent with the gift to Gayle of the house provided for in  the 2006 Will, and which also signaled Andrew’s concern that he might have signed documents he could not remember or understand that jeopardized Gayle’s entitlement to the property and that by giving her the deed itself, he could protect her entitlement.

Gayle’s Application was successful. In 2018, the Application Judge declared the 2007 Will to be invalid, confirming Andrew’s 2006 Will as his true last will and testament. Glenn (along with his uncle and co-executor, Michael) appealed, and both sides on appeal tried to introduce fresh evidence.

At both levels of court, Glenn argued that Gayle’s Application was barred under Ontario’s   Limitations Act, 2002, because she filed it over two years after Andrew died, and over two years after she was aware of the 2007 Will. Glenn sought to introduce into evidence a letter from Gayle’s lawyer dated December 16, 2014, which referenced a phone call Gayle had with Glenn’s lawyer, during which the existence of the 2007 Will was discussed.

The Application Judge ruled that while the two-year limitation period for a will challenge presumptively starts on the date of death, the date when Gayle discovered that she had a basis for a will challenge was ultimately determinative. The basis for Gayle’s challenge did not arise on December 16, 2014 when she may have known about the existence of the 2007 Will, either from the letter between lawyers that month or an earlier phone call.   Rather, the Application Judge considered the contents of the 2007 Will to be the “essential elements” to Gayle’s application.  Accordingly, her cause of action was only discovered once she had a copy of the 2007 Will in January 2015.  As Gayle filed her claim before January 2017, she was within the two-year limitation period. The Court of Appeal upheld the finding that the limitation period did not start to run until Gayle’s discovery of the grounds for a claim, which was the contents of the 2007 Will.

Estate litigants who are considering filing a will challenge, or defending one on the basis of a limitation period, should review the important issue of discoverability and the distinction between when a party has sufficient specific knowledge about facts that can give rise to a claim, as opposed when a party has general knowledge simply about the existence of disputed testamentary documents.

The Court is also critical of the efforts to introduce fresh evidence on appeal, in particular where evidence appears to be clearly within the control of counsel and available to a litigant by the exercise of due diligence at the first stage in a proceeding.

Finally, an observation that in this case, the appellant argued at both levels of court over a 9-day difference between the two-year anniversary of the date Gayle was told about the existence of the 2007 will, and the date of serving and filing her will challenge. As the adage goes, litigation is uncertain and it is not possible to control the actions of your opponent. This avenue of appeal could have been closed off by filing the application nine days earlier.

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