Estate Litigation Blog

Limitation Period on a Will Challenge: Shannon v. Hrabovsky

by Lisa Fenech, Published: November 16, 2018

Tags: 2018 onsc 6593,  discoverability,  limitation period,  limitations act,  shannon v. hrabovsky,  will challenge

How much time does a will challenger have to commence proceedings? The safest answer is: within two years of the date of death of the deceased. If a will challenger wants to commence proceedings after two years of the date of death, they will need to convince a court that the principle of discoverability applies in will challenges and that it applies to the circumstances of their case. The recent decision in Shannon v. Hrabovsky, 2018 ONSC 6593,offers guidance as to the application of the principle of discoverability in will challenges.

In Shannon, the deceased died on November 15, 2014. The daughter did not know of the existence of the deceased’s last will on the date of death of her father. She received a copy of it in January 2015. The daughter commenced a will challenge on December 23, 2016, two years after the death of her father but less than two years from the date that she received a copy of the last will.  When did the two-year period pursuant to s. 4 of the Limitations Act run out? Does the principle of discoverability apply?

Shannon states that the principle of discoverability applies to will challenges. Pursuant to s. 5(2) of the Limitations Act, a person is presumed to have knowledge of all the necessary facts to commence litigation on the date of death of the deceased. The discoverability principle will apply if the will challenger can prove that on the date of death of the deceased, s/he was ignorant of the facts set out in s. 5(1)(a) of the Limitations Act, mainly that a loss had occurred; the loss was caused or contributed to by an act or omission; the identity of the person who acted or failed to act; and that litigation was appropriate to remedy the loss. When the principle of discoverability applies, the limitation period will start to run as of the date by which a reasonable person knew or ought to have known these facts.

In Shannon the court determined that the discoverability principle applied because, on the death of death of her father, the daughter lacked knowledge of the existence and contents of the last will of the deceased. Therefore, the presumption under s. 5(2) was rebutted and the limitation period started to run when the daughter received a copy of the last will.  

Although it seems that in Leibel v. Leibel, 2014 ONSC 4516 and Birtzu v. McCron, 2017 ONSC 1420 courts had also decided that the principle of discoverability applies to will challenges, it remains for the Court of Appeal to provide binding authority on the topic.