Limitation periods in will challenges: Declaratory vs. consequential relief

By Harkirt Singh Dhadda

Law360 Canada (June 1, 2023, 9:00 AM EDT) --
Harkirt Singh Dhadda
Harkirt Singh Dhadda
There is often a temptation to delay commencing a will challenge. Litigation over a family member’s estate invariably causes tension between close relatives. Commencing a will challenge typically requires the objector to name the estate’s beneficiaries as respondents, which means that they are suing their family members. There is often a hope that, by trying to settle the estate dispute prior to commencing a lawsuit, the familial relationship will be preserved.  

Unfortunately, courts are not sympathetic to these “soft” considerations to delaying litigation, and as such missing a limitation period can have devastating consequences. In Ontario, the Limitations Act provides a basic two-year limitation period — meaning that a claim must be brought within two years from the date of its discovery. Following the two-year period, most actions will be considered statute-barred and thus, dismissed from court. In estate litigation, the two-year period generally commences from the date of death of the deceased, subject to discoverability component.

If you do find yourself past the two-year limitation period, you should consider whether your claim was even subject to the limitation period in the first place. An important consideration when it comes to the limitation period is determining whether the party commencing the claim is seeking declaratory or consequential relief. If a party seeks consequential relief after more than two years, the proceeding will be statute barred and the application will be dismissed. If, however, a party seeks declaratory relief, then the basic two-year limitation period will not apply.

The distinction between consequential and declaratory relief is best described through the decisions of Bristol v. Bristol, 2020 ONSC 1684 and the Ontario Court of Appeal’s decision in Piekut v. Romoli, 2020 ONCA 26.

In Bristol v. Bristol, Elizabeth Bristol (the deceased) died on Dec. 6, 2016. Her daughter, the applicant, issued a notice of objection on Dec. 30, 2016. Her son, the respondent, sought a Certificate of Appointment of Estate Trustee with a Will. Other than filing a notice of objection, the applicant took no further steps until April 23, 2019, at which point she brought a motion for directions.

The court ultimately dismissed the applicant’s motion and found that the limitation period in this case was up and that the matter was statute-barred. Specifically, the court found that the applicant knew that the respondent had taken steps to be appointed as the executor of the deceased’s estate and took steps to prevent that from happening. Therefore, the limitation period began to run on Dec. 6, 2016. In conducting its analysis, the court considered whether the applicant was seeking consequential or declaratory relief. The court found that the applicant was seeking consequential relief because:

  1. The applicant sought the removal of the respondent as the estate trustee and asked the court to substitute herself as the estate trustee;
  2. The applicant sought an accounting of the estate assets and debts; and
  3. The applicant sought indemnity for unreasonable expenses.

Bristol v. Bristol shows us that if a party is seeking anything from the court that requires the application of a legal test, and the weighing of evidence, it is unlikely that the court will accept such a proceeding as declaratory. Accordingly, rather than trying to find loopholes after the fact, it is up to the applicant to act in a reasonable and prudent manner in pursuit of their legal claims.

Conversely, Piekut v. Romoli is a decision which provides guidance on when claims will be allowed to continue after the two-year limitation period has expired. In this case, Stanislaw Wroblewski (the deceased) died on July 31, 2008. His wife, Jadwiga Wroblewski, predeceased him and died on June 4, 2008. Pursuant to the last will and testament, the deceased’s estate was to be left equally to his three children in the event that his wife predeceased him.

The applicant, one of the deceased’s children, commenced an application seven years following the deceased’s death to determine whether codicils to the will were valid. The application was opposed by another one of the children who brought a motion for summary judgment on the basis that the limitation period had expired.

In making its ruling, the court found that the application was not statute-barred since the applicant was seeking declaratory relief. Specifically, the court commented that the applicant was not asking the court to determine who the rightful beneficiaries are but rather, asked the court to make a determination on whether the codicils were valid. In this type of case, the relief sought is declaratory even though there are real consequences for the parties/beneficiaries involved on the basis of the court’s determination.


Based on the above case law, it is clear that simply framing your relief as declaratory in order to avoid the limitation period defence is not a prudent strategy. However, as long as a claimant is not asking the court to award damages, order someone to act or refrain from acting or seeking judicial remedies, then it is possible that their claim can be framed as declaratory and, in that case, would not be found to be statute-barred. Ultimately, it is up to the claimant to act quickly in order to protect his or her legal rights.

A lunch and learn seminar that discusses limitation periods in will challenges, hosted by Wagner Sidlofsky LLP, is scheduled to take place on June 7, 2023, starting at 12 p.m. Whether you are an experienced estate litigator or a novice, this free Zoom seminar is worthwhile for counsel to attend and enjoy seasoned experienced litigators discussing this pivotal issue in the litigation. For more information and to register please access the following link.

Harkirt Singh Dhadda is a member of Wagner Sidlofsky's LLP’s estate and commercial litigation groups.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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