When Does the Limitation Clock Start on a Will Challenge?

Court of Appeal Clarifies “Discovery” in Shannon v. Hrabovsky (2024 ONCA 120)

By David P. Gould, Fallow Gould LLP — Estates Litigation

For almost a decade, Ontario courts have treated will challenges as claims subject to the two-year limitation period in section 4 of the Limitations Act, 2002. The Court of Appeal’s decision in Shannon v. Hrabovsky, 2024 ONCA 120, clarifies when that clock begins to run. The Court confirmed that knowing a will exists is not enough; what matters is when the claimant gains sufficient knowledge of its contents and the surrounding circumstances to make litigation an “appropriate means.”

The case concerned the estate of Andrew Hrabovsky. In 2006, he executed a will leaving his Toronto home to his daughter, Gayle, and dividing the remainder of the estate equally between her and his son, Glenn. In 2007, he executed another will disinheriting Gayle and removing her as executor. Mr. Hrabovsky died in November 2014. Gayle learned afterward that a 2007 will existed and received a copy in January 2015. She commenced her will challenge in December 2016, alleging lack of capacity and undue influence. The estate trustees argued that her application was out of time and, on appeal, relied on a December 16, 2014 letter from Gayle’s lawyer demanding a copy of the 2007 will as proof that she knew of its existence more than two years earlier.

At first instance, Justice Wilton-Siegel rejected the limitation defence. Although section 5(2) of the Limitations Act presumes a person knows the contents of a will on the date of death, he held that this presumption can be rebutted. He found that Gayle had only suspicions of a 2007 will and no knowledge of its existence or contents until January 2015. As he wrote, she “was never able to confirm its existence nor … made aware of its contents until January 2015 … [and] did not discover the claim until sometime in January 2015” (para. 69). He therefore held the claim timely. Justice Wilton-Siegel also found the 2007 will invalid for lack of testamentary capacity, describing it as “sufficiently inexplicable and out of character for the Testator” (para. 90), and reinstated the 2006 will as the true last will and testament.

On appeal, Justice Dawe (Roberts and Sossin JJ.A. concurring) dismissed the trustees’ challenge. He refused to admit the 2014 letter as fresh evidence, noting that the appellants failed to act with reasonable diligence—both their lawyer and their witness already had the document—and that it would not have been decisive even if admitted. “The [demand] letter was in [the solicitor’s] possession,” he wrote, and the appellants “could have adduced this evidence … through reasonable diligence” (para. 36).

The Court endorsed the lower court’s approach to discoverability, holding that it would have been premature for Gayle to sue before receiving and reviewing the 2007 will. “It would have been premature for [the daughter] to have started legal proceedings … until she received a copy of it and could examine its terms” (para. 45). Knowledge that a will exists, the Court explained, is distinct from knowledge of its contents; without the document, Gayle could not reasonably determine whether litigation was an “appropriate means” under section 5(1)(a)(iv).

The Court further held that where pre-litigation correspondence sets a deadline for disclosure or action, the limitation period begins on that deadline, not on the date of the letter. Drawing on Birtzu v. McCron (2017 ONSC 1420), Justice Dawe concluded that the limitation clock “only began to run as of the January 2015 deadline that [counsel] set in his letter … and that he later extended” (para. 55). Because the application was filed within two years of that extended deadline, it was not statute-barred.

Shannon reinforces several points of practice. The discoverability principle applies to will challenges: a disappointed beneficiary may rebut the presumption of knowledge at death by showing they lacked knowledge of both the existence and the contents of the will. Awareness that another will exists does not start the limitation period. Where a demand letter sets a disclosure deadline, the clock runs from that date. Evidence in counsel’s possession will rarely meet the due-diligence standard for fresh evidence on appeal. And, as the Supreme Court noted in Grant Thornton LLP v. New Brunswick (2021 SCC 31), discovery requires more than suspicion or speculation; the claimant must know enough to appreciate that litigation is appropriate.

The bottom line in Shannon is simple but significant: the limitation period for a will challenge does not automatically begin at death. It begins when the claimant, acting reasonably, knows enough—including the will’s contents—to see litigation as an appropriate remedy. As Justice Dawe put it, “[i]t would not have been reasonable for [the daughter] to commence litigation to challenge the validity of a will that she had never seen, and that might not even exist” (para. 45).

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