ESTATES AND LIMITATION PERIODS

Apr 7, 2026

For Estates litigators, the date of the Deceased person’s death is perhaps the key piece of information we need to get from a potential client. That date is relevant for many purposes, but the most significant is that it starts a limitation period running. Under section 38(3) of the Trustee Act, most potential claims against a Deceased person become statute barred – in other words, they expire – two years from the date of the death.[1]

Sections 38(2) and (3) reads as follows:

38(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

Unlike the standard limitation period in the Limitations Act, 2002, which covers the vast majority of claims, the limitation period set by s. 38(3) runs whether the potential claim is discovered (or even discoverable) or not. The time for bringing a claim can expire without a potential claimant even knowing it existed in the first place. This makes the Trustee Act’s limitation period particularly strict in its operation, leading to a potentially harsh result for would-be claimants. Once two years from death has elapsed, there is rarely anything to be done for a potential claimant, no matter how strong their case might have been.

That said, there are a few important ways that the two-year limitation period can be “tolled,” or suspended. Three of these are set out in the Limitations Act itself. Others exist at common law.

 

Provisions Under the Limitations Act that Toll the Limitation Period

Section 19(5) of the Limitations Act lists three specific sections of that Act that can delay the expiry of a limitation period, even limitation periods set in another act (such as the Trustee Act): Sections 6, 7 and 11.

Sections 6 and 7: Incapable Parties

Section 6 of the Limitations Act provides that a limitation period does not run against a minor during any time in which the minor does not have a litigation guardian. Section 7 provides the same for an incapable person during any time in which they are not represented by a litigation guardian. For both sections, the litigation guardian must be appointed “in relation to the claim”, not at large or in some other proceeding. As a result, someone would need to seek the appointment of a litigation guardian to address the particular claim and thereby start the limitation period running. (See section 9, which allows a potential defendant to appoint a litigation guardian for the incapable person or minor with a potential claim.)

Section 11: Settlement Discussions

Section 11 tolls the limitation period in specific circumstances where the parties are attempting settlement:

11 (1)  If a person with a claim and a person against whom the claim is made have agreed to have an independent third party resolve the claim or assist them in resolving it, the limitation periods established by sections 4 and 15 do not run from the date the agreement is made until,

(a) the date the claim is resolved;

(b) the date the attempted resolution process is terminated; or

(c) the date a party terminates or withdraws from the agreement.

As this section describes, not any settlement discussion will toll the limitation period. Settlement offers back and forth between parties is not enough. There must be agreement to involve a third party, though there need not necessarily be agreement on the identity of that third party, or on a date or particular process. And in the case of Tribury v. Sandra, the court held that it will otherwise give a generous interpretation to the application of section 11:

In circumstances where there is ambiguity in what the parties agreed to mediate or when one of the parties to the litigation does not immediately consent to participate in the mediation process, the limitation period should still be suspended.   Otherwise, plaintiffs will be reluctant to engage in a mediation process for fear that they will be ‘caught out’ in the event they did not set out a comprehensive mediation agreement.[2]

In other words, if there is a broad agreement to mediate all issues involving an estate or arising from a death, one party cannot try to say that the limitation period on some specific issue expired during the time there was agreement to mediate.

 

Common-Law Doctrines that Toll the Limitation Period

Finally, the Court of Appeal has held that common law doctrines can also toll the limitation period under s. 38(3) of the Trustee Act. Moldaver J.A., speaking for the court in that case, held as follows:

In my view, s. 38(3) was exempted from the new Act so that its common law status would be preserved and it would remain immune from the discoverability rule. In other words, the legislature intended that s. 38(3) should continue to be governed by common law principles.[3]

Fraudulent Concealment

The doctrine of fraudulent concealment is one such principle. Where the existence of a claim has been fraudulently concealed from the potential claimant, the doctrine suspends the running of the limitation period until the potential claimant could reasonably discover the cause of action.[4]

Special Circumstances

Another common-law doctrine is the doctrine of special circumstances, which is available to permit a court to add parties to an existing action, provided the defendant knew of the claim and is not significantly prejudiced. The provision continues to apply to limitation periods that remain in effect outside the Limitations Act, despite the fact that the doctrine was abolished by s. 20 of that Act for cases governed by the limitation periods set out in that Act.[5]

 

Conclusion

All of these exceptions rely on the existence of specific facts, which won’t apply to most potential claims. While they may be useful tools in your lawyer’s tool belt, by far the easiest way to make sure you are able to advance your claim against an estate is to make sure you consult a lawyer as soon as possible.

 

Laura Cardiff

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

 

[1] Note that the Trustee Act does not apply to all claims you may want to bring against an estate, which may have either longer or significantly shorter limitation periods. For example, the limitation period for a dependant’s support claim is 6 months from the date of probate. The best advice is always to consult a lawyer as soon as you think you may have a claim.

[2] Tribury v. Sandro, 2013 ONSC 658 (CanLII), at para 69

[3] Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341, [2005] O.J. No. 226 (C.A.), at para 33.

[4] Ibid at para 34.

[5] Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196 (CanLII), at para 51.

CONGRATULATIONS ON SETTLING! NOW WHAT?

Sep 15, 2023

In the world of estate litigation, it’s common for matters to settle before they go to trial. Sometimes matters are resolved through settlement negotiations and, other times, matters resolve at formal mediations facilitated by a neutral mediator.

Settling litigation, whether early in the process or on the eve of trial, generally comes as a relief to clients; it means the end of what is frequently an emotionally exhausting and stressful process, not to mention a costly one.

But what happens after you’ve reached an agreement to settle with the other side? What steps do the parties have to take to wrap up the litigation so everyone can move on?

Once the parties agree, in principle, to a settlement, it is important to document the terms of that settlement in writing. This document is typically called the Minutes of Settlement.

Usually, one lawyer will prepare a draft of the Minutes of Settlement and the lawyers on the other side will review and provide their comments. Lawyers will go back and forth until everyone agrees on the Minutes of Settlement.

The Minutes of Settlement are where the lawyers turn their mind to the many minutiae of settlement that the parties may not have contemplated in their agreement, but that are critical to the settlement. For example, does a settlement payout include taxes? Who is going to pay each party’s legal fees? Now that the litigation is settled, who is going to file with the court the motion dismissing the court proceeding?

If a settlement is reached at mediation, the lawyers often try to get the Minutes of Settlement drafted and signed by all parties before the end of the day, although sometimes this just isn’t possible. Generally, the longer it takes to draft Minutes of Settlement and get them signed, the more likely it is for the settlement to fall apart.

In addition to drafting Minutes of Settlement, the lawyers will also prepare a Full and Final Release for the parties to sign. The Release is intended to ensure that no one can ever re-litigate the issues resolved in the settlement. The Release may also have a confidentiality clause or a non-disparagement clause.

Another consideration is whether the settlement involves a minor or an incapable person (called a “person under disability”). If so, before the settlement is finalized, counsel for the party under disability must bring a motion or application and file evidence to satisfy the court that the proposed settlement is reasonable and in the best interests of the party under disability.

Once the Minutes of Settlement and Releases are finalized, you’re not done quite yet. The lawyers for each side must make sure that their clients comply with any timelines set out in the Minutes of Settlement. For example, Minutes of Settlement may include deadlines for paying settlement funds, for dismissing a court application, for applying for probate, for moving out of a property owned by an estate, or for listing a property for sale.

If any party fails to comply with the terms of the Minutes of Settlement, the other side may bring a motion before the court enforcing the terms of the settlement.

While reaching a settlement means the end of litigation and is something to celebrate, for the most part, it takes a little more work to get things over the finish line.

 

Cara Zacks

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.