Legal Blog

Will & Ultimate Limitation

In our October 2025 newsletter, we set out a detailed description of the 15-year ultimate limitation period and some of the exceptions to it. We will not repeat that description now – even though the cases keep coming.

One of the more important cases is Tessaro v. Gora 2025 ONSC 198 (SCJ). The case dealt with the question of whether the ultimate limitation period starts when a will is drafted or, instead, the date when the will comes into force (i.e. upon the testator’s death).

Timing

1991   Lawyer drafted a will for a testator.

2018   The testator died.

2019   The beneficiaries, who were the testator’s surviving sisters, commenced an application seeking an interpretation of the will to determine whether they had to share the testator’s estate with their nieces (i.e. the two children of a deceased sister).

2020   The nieces commenced an action against lawyer for negligence in drafting the will.

2024   The sisters and the nieces settled the will interpretation application by way of minutes of settlement. Accordingly, no interpretation was made as to whether the will properly expressed the testator’s intention.

Will

The will’s dispositive clause stated:

To such of my sisters living at the time of my death, I give whatever real estate that I own or that may be in my possession at the time of my death, in equal shares per stirpes (judge’s underlining).

The judge recognised that the clause was drafted ambiguously. The first portion indicated that only the sisters who were alive at the time of the testator’s death would take anything. The second portion indicated that the share of a deceased sister would go to her daughters.

Accordingly, regardless of who got what in the minutes of settlement, all the possible beneficiaries were upset with lawyer who drafted the will. They asserted that, because of the negligent drafting, they settled the will interpretation application for less than the testator intended them to receive.

However, the question the judge was to decide was not whether the nieces had a proper claim against lawyer for negligent drafting of the will. Rather, the question was whether the ultimate limitation period commenced when the will was drafted, resulting in the nieces’ action against lawyer being barred.

Limitations Act Issues

Section 15(2) of the Act states that “no proceeding shall be commenced in respect of any claim after the 15^th anniversary of the day on which the act or omission on which the claim is based took place.”

Lawyer took the position that the alleged negligent act took place when lawyer drafted the will in 1991. The transition provisions of the Act applied; the claim had not been discovered by January 1, 2004, and therefore the act or omission was deemed to have occurred on that date. This meant that the ultimate limitation period expired January 1, 2019, and that the nieces commenced their action against lawyer too late. The fact that the regular two-year limitation period would only have commenced, at the earliest, in 2018 and, possibly, in 2024 was irrelevant because the ultimate limitation period governed (s. 15(1)).

The nieces took the position that, under s. 22 of the Succession Law Reform Act, the will speaks solely from the testator’s death and beneficiaries have no rights under a will until the testator dies. The beneficiaries cannot sue the drafting lawyer before the testator dies because the testator can revoke or change the will up to the moment of death. Accordingly, the beneficiaries are not injured until the will comes into force on the testator’s death, but fails to do what testator intended to do.

Statutory Interpretation

The judge guided himself by the following:

. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (per SCC).

The judge stated:

I therefore need to look closely at the words used as the means chosen by the Legislature to achieve its statutory purpose. The goal of the exercise is to achieve harmony between the words used and that purpose.

The judge noted that the discovery principle in the two-year limitation period is based on a principle of fairness: “as a starting point a person should know that he or she has the right to sue someone before the time clock runs to take away that right.” However, the discovery rule effectively extends indefinitely the period for which potential defendants remain at risk of being sued, which results in indeterminate liability. This has social costs and administration of justice problems; hence, the 15-year ultimate limitation period. Even then, the legislation included exceptions to the 15-year ultimate limitation period (s.5(4)), exceptions that did not apply in this case.

The judge accepted the nieces’ submission that lawyer’s position could, and likely would, mean that in any case where the testator survives for 15 years after signing a negligently drawn will, the beneficiaries will lose their ability to sue the drafting lawyer for negligence – even before they have the right to do so.

The judge concluded that the legislature had weighed the competing policy goals and, reflecting its assessment of the social policy priorities, settled upon the wording of the ultimate limitation period, which it ameliorated with the exceptions.

Key to Issue

The judge asked: On what act or omission was the nieces’ claim based? The answer was the negligent drafting of the will. The claim was not based on lawyer’s failure to perform a duty he owed in 2018. “The fact that estate law treats the will ‘as if’ it was made immediately prior to the testator’s death does not change the fact that the act on which liability is based happened more than 25 years previously.” The Act does not incorporate any exceptions to the ultimate limitation period based on s. 22 of the Succession Law Reform Act. Accepting the nieces’ interpretation would reintroduce discoverability and the accrual of a cause of action, concepts that are relevant only to the two-year limitation period, into the assessment of the ultimate limitation period.

The judge held that the legislature had created numerous exceptions to the broad scope of s. 15(2) where it determined that it was proper to deem acts to have occurred at later dates, but the case did not fall within those exceptions. The judge held that it was the job of the legislature, not a judge, to create a new exception. Accordingly, he dismissed the nieces’ action.

Trustee Act

The nieces also relied on section 38 of the Trustee Act, which allows two years for actions by and against an estate. This section was inapplicable because the beneficiaries were bringing the action, not the estate. In any case, the judge held that the two-year period in s. 38(3) “is a maximum that could limit a later claim even if the testator himself could have brought a claim had he lived.” It does not extend a claim that could not have been brought had the testator not died. The testator’s right of action while he lived was long gone against lawyer.

Result

Lawyer dodged a bullet. It is possible that people who do the responsible thing and obtain a will while young might be penalized if their lawyer badly drafts their will and the poor drafting only comes to light many years later. Conversely, people who make wills should check those wills every five years or so and, certainly, at least every 15 years.

 

Image courtesy of Bru-nO.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.