This Lunch and Learn seminar will address limitation periods in Will challenges. Is there a limitation period to challenge a Will? How long is it? What happens if it is missed?
The key factor that determines whether the 2 year limitation period prescribed in the Limitations Act applies to a Will challenge is whether the applicant seeks consequential relief or declaratory relief. Consequential relief includes orders for damages, support, or injunctions. In these cases, the 2 year limitation period applies. If the applicant seeks declaratory relief, then, arguably, there is no limitation period.
The distinction between whether relief sought is consequential or declaratory is nuanced, and often the subject of litigation. The Court is aware that applicants may try to frame a request for consequential relief as a request for declaratory relief to prevent their application from being statute barred by the Limitations Act. The Court is also aware that declaratory relief can have consequences, such as the interpretation of a Will disinheriting a party that thought they were a beneficiary.
- Differences between consequential relief and declaratory relief
- Case law review of Piekut v. Romoli and Bristol v. Bristol
- Considerations for drafting solicitors
In the Media
This article was published by Law360 Canada, part of Lexis Nexis Canada Inc. on June 1, 2023.