What is the limitation period for bringing a claim in British Columbia for contesting the validity of a will under the new Limitation Act?
Perhaps the Limitation Act, SBC 2012, c. 13, is not that new anymore, having come into effect over two years ago on June 1, 2013. But under the transition rules, the previous legislation continues to apply to many claims, and for convenience I will refer to the current Act as the new Limitation Act. In a previous post, I wrote about how the new Limitation Act works.
As far as I know, there have been no reported decisions applying the new Limitation Act to claims contesting the validity of wills in British Columbia. But if an Ontario case, Leibel v. Leibel, 2014 ONSC 4516 (Canlii), is applied in British Columbia, the limitation period may in some cases be as early as two years following the date of death.
Eleanor Leibel died on June 4, 2011. She made two wills on April 9, 2011, one of which is referred to as a primary will, and which her estate trustees probated, and the other, referred to as her secondary will, disposed of assets for which probate was not required in Ontario. She made her wills while terminally ill with brain cancer. She appointed her sister and her separated husband as her estate trustees, and left her estate to her children, Blake Leibel and Cody Leibel. Under her wills, Blake Leibel received a larger share of her assets.
Blake Leibel wrote to the lawyer who drafted the wills a couple of weeks after his mother’s death, expressing concern about the appointment of the trustees, and asking for referrals for independent advice. One of the estate trustees sent copies of the Wills to Blake Leibel who lived in California by Purolator on July 12, 2011.
The Estate Trustees made distributions to Blake Leibel, and, he lent money to a corporation to pay estate income tax liabilities.
On September 5, 2013, Blake Leibel brought an application for a declaration that the 2011 wills were invalid, on the stated grounds that his mother did not have capacity to make the wills, and that she was unduly influenced in making them. Under one of her previous wills, he would have received her entire estate to the exclusion of his brother.
The estate trustees applied to dismiss the application in part on the basis that the limitation period had expired. In reaching her decision that the limitation period for bringing the claim had expired, Madam Justice Greer set out the applicable provisions of Ontario’s legislation as follows:
 In my view, the provisions of the Act apply with respect to Blake’s Application being outside the limit under the Act. Section 4 of that Act states:Unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.and Section 5(1) states:A claim is discovered on the earlier of,(a) the day on which the person with the claim first knew,(i) that the injury, loss or damage had occurred,(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,(iii) that the act or omission was that of the person against whom the claim is made, and(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).Subparagraph 5(2) of the Act, says that a person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
Madam Justice Greer found that by July 31, 2011,Blake Leibel had sufficient information to commence a claim. She wrote,
 In applying the “discoverability principle,” Blake had the knowledge to commence a will challenge on or before July 31, 2011. By that date he knew the following facts:(a) Prior to Eleanor’s death Blake knew that Eleanor had recovered from lung cancer but now had brain cancer.(b) He knew Eleanor had changed her previous Wills.(c) He knew the date of Eleanor’s death, as Lorne had called him and Cody on that date.(d) He received copies of the Wills prior to July 31, 2011, and he knew who the Estate Trustees were under the Wills.(e) He knew what Eleanor’s assets were. He had at least a sense of her income, as she had been sending him monthly cheques before the date of her death and had a sense of the value of her assets.(f) He signed corporate documents for a company now owned by her Estate prior to July 31, 2011.(g) He had communicated with Ms. Rintoul about his concerns and she gave him the names of three estates counsel to consider, as independent legal advisors.Blake, therefore, had all of the information needed to begin a will challenge. He chose, instead, to take many of his benefits under the Wills before he commenced his Application.
Madam Justice Greer held that the two year limitation began to run from the date of death, on June 4, 2011. In this respect, the judgment may be open to the criticism that Madam Justice Greer did not apply the discovery principle (although perhaps the presumption in subsection 5(2) applied), but in view of her finding that Blake Leibel had sufficient knowledge by July 31, 2011, and he commenced his application more than two years after that date, he would have been out of time in any event.
Because the decision is an Ontario decision, it is not binding on British Columbia courts, but may be persuasive in view of the similarities between the provisions of the Ontario legislation and British Columbia’s new Limitation Act. Section 6(1) of B.C.'s Act provides for the basic limitation period as follows:
Basic limitation period
The discovery rule in British Columbia is set out in section 8:
General discovery rules
8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:
Although the limitation period may in some cases begin to run from a date later than the date of death by virtue of the discovery rule, the safe course for anyone wishing to challenge the validity of a will is to file an application in court before the second anniversary of the date of the will-maker’s death.
It should be noted that there are different limitations for different types of estate litigation. For example, wills variation claims under the Wills, Estates and Succession Act must be brought within 180 days from the date of probate. The limitation period is shorter, but does not begin to run until probate.