Limitation Periods in Estate Litigation
The Limitations Act, 2002 (LA, 2002) affects limitation periods in estate-related statutes, including the Estates Act, Estates Administration Act, Family Law Act, Insurance Act, Succession Law Reform Act and Trustee Act.
Under the LA, 2002, there are two specific time limitations for commencing an action. The first limitation period is two year from the “discovery” of a claim (subject to certain exceptions), which is coupled with an “ultimate” limitation period of 15 years from the day of the act or omission, regardless of a claimant’s state of knowledge (which is also subject to certain exceptions).
Where the litigation concerns, minors and incapable persons, there are a variety of circumstances that will either delay or stop the running of time. In particular, neither the basic nor the ultimate limitation period will begin to run while the potential plaintiff is under the age of 8 and not represented by a litigation guardian.
With respect to incapable persons, the LA, 2002 provides that the basic limitation period will not run during any time in which a person is incapable of commencing a proceeding in respect of the claim because of his or her psychological condition and is not represented by a litigation guardian.
Summary of Limitation Periods in Estate Matters
|Trustee Act||s. 38(3)||Within 2 years from death||Actions by estates for torts or injuries to the person or property of the deceased or actions against estates for wrongs committed by the deceased|
|SLRA||s. 61(1)||Within 6 months of appointment||Applications for dependent support|
|SLRA||s. 61(2)||Court may extend||Extension applies to undistributed amounts but not s. 72 assets|
|FLA||s. 6(10||Within 6 months from death||Spousal election under the FLA together with an application|
|FLA||s. 6(14)||Within 6 months from death||Estate cannot distribute without spousal consent|
|FLA||s. 6(16)||Court may extend||Broad power (but the estate’s net family property is based only on undistributed amounts)|
|Estates Act||s. 44(2)||Within 30 days after being served||Claimants against estates who are served with a notice of contestation of claim must file an affidavit and statement of claim|
|Estates Administration Act||s. 9||After 3 years after death||Real property not disposed of within 3 years of death is deemed to have vested in those beneficially entitled to property unless a caution is registered|
|Rules of Civil Procedure||r. 75.03(2)||Within 3 years from filing||Notice of objection expires three years after it is filed|
|Rules of Civil Procedure||r. 75.05(4)||Within 30 days from order||Where a party obtains an order for a return of the certificate of appointment, that party must move for directions within 30 days of the date of the order – otherwise the certificate of appointment may be returned to the estate trustee|