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.
Mar 11, 2026
A judgment has been awarded to you, but the money hasn’t arrived, yet. We’ve discussed the option of Garnishment in my previous blog. You probably have also heard of a Writ of Seizure and Sale, but how to start the process? Does it have to be filed at the Sheriff’s Office? Did you also accidentally call the York regional police for a sheriff? Oops! Fortunately, there is a new route to have a Writ issued electronically via WritFiling. We will walk you through both options.
Issuance Through the Registrar
A creditor can submit a Writ of Seizure and Sale (Form 60A) (“Writ”) to be issued with a Requisition form at the court registrar where the original proceeding commenced[1].
The Requisition form should detail the date and the amount of payment received, the amount owing, and the rate of post-judgement interest[2]. A copy of the Order should be attached to the Requisition form.
Once a Writ is issued, it may be filed with a Sheriff[3]. The Sheriff’s office is the Enforcement office of the Superior Court of Justice (NOT the police office!)
While the Writ should be issued where the Judgment was granted, it must be filed at the Enforcement office in the region where the debtor lives or owns assets. For example, if your judgment is issued in Toronto and the debtor lives in Richmond Hill. The Writ should be issued in Toronto, but the issued Writ is to be filed at the Sheriff’s Office in Newmarket court.
You may locate the Enforcement office through the following website: https://www.onwrits.ca/en/enforcement-offices/.
For Writ of Seizure and Sale of a property, the Writ should include a legal description of the real property, which can be found in the parcel register. Check out my previous blog: a walk through of the parcel register.
Issuance Through the WritFiling
During the Covid-19 pandemic, technology streamlined the process for legal professionals to issue and file Writs remotely[4].
An authorized user such as a lawyer or a paralegal[5] (for Form 20D: Writ of Seizure and Sale of Land only) may electronically issue the Writ through WritFiling, a product of Teranet software, instead of filing through registrar and enforcement office[6]. An electronically issued Writ is considered to have been both issued by the court and filed with the Sheriff[7].
To use this service, authorized users may submit an application and will receive a secure token. WritFiling has very detailed user guide on application and how to file and issue a Writ.
The filing process is very straightforward, and the issued Writ is designed to be clear and easy to understand. A service fee of $34.95 plus HST will be applied each time. Below is a sample of an electronically issued Writ of Seizure and Sale for your reference.
Whether you choose to file the Writ through the court registrar yourself or retain a lawyer to file through WritFiling, understanding the procedural nuances is the key to successfully enforcing the Judgment and collecting the debts. In my next blog, we will dive deeper into the next phase: how to direct the Sheriff to enforce your issued Writ.
Jennifer Jiang
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] Rules of Civil Procedure, R.R.O. 1990, Regulation 194 [“Rules”], Rule 60.07(1).
[2] ibid
[3] Ibid at Rule 60.07 (5.1)
[4] “Teranet WritFling Solution Expands Services to Offer Convenience and Facilitate Collaboration.” Teranet, November 23, 2020, Online: <https://www.teranet.ca/insights/teranet-writfiling-solution-expands-services-to-offer-convenience-and-facilitate-collaboration/>
[5] Supra at Rule 60.07(0.1)
[6] Rules, Rule 60.07(1.1)
[7] Ibid at Rule 60.07(1.3); “How do I file/issue or file a writ?”, WritFiling, Online:<https://www.onwrits.ca/en/help-support/support/faq/issue-file-a-writ/how-do-i-file-issue-or-file-a-writ/>
Mar 5, 2026
In law school, we learn how to read a set of facts, find the legal issues, the applicable legal tests, and apply them to answer some hypothetical question.
What we do not learn, at least not in detail, is how to prepare for court in practical ways, aside from knowing the law. This is where the articling experience comes in.
So far, in my articling term at Casey & Moss LLP, I have been fortunate to attend, observe, and even speak in court. I was understandably nervous at first, but I came to appreciate that pre-court nerves are part of the process, and everyone experiences them in some way or another (or so I’ve been told…).
Setting aside the inevitable nerves, my in-court experiences have taught me practical lessons that extend beyond what is covered in law school lectures. I share a few of them below.
Lesson 1: You Need to Read the Practice Directions. Then Read Them Again.
Before you step into a courtroom, you need to have read and understood the practice directions for that specific court. In fact, before even getting to the court part, you need to ensure that your filed materials comply with the court’s filing requirements.
Thankfully for me, at Casey & Moss LLP, our lawyers are diligent about updating one another on interesting finds in the practice directions and drawing attention to any important changes or new discoveries in the filing requirements.
As an articling student, I’ve witnessed how staying on top of these changes translates into preparation for court: A lawyer who knows the law can make an argument, but a lawyer who knows the law and the practice directions can make sure to have that argument heard.
Lesson 2: If You Raise It, You Better Know Where It Is in Your Evidence
Observing courtroom advocacy taught me that every oral submission must be grounded in the evidence, and that counsel must know precisely where that evidence can be found.
This means knowing:
- The specific document in the evidentiary record that supports each part of your submission;
- The Case Center reference for where it can be located;
- The exact paragraph or page number you intend to direct the judge to; and
- What you are asking the court to take away from that particular passage.
That level of familiarity does not happen by accident. Hours of prep go into it.
But there is also something reassuring about watching experienced counsel field questions from judges in real time. When asked a difficult question, they do not panic. Often, they respectfully pause their submissions to acknowledge the question, clarify what is being asked if needed, and either provide the pinpoint to the answer or ask for a brief opportunity to retrieve it during a break.
As the articling student, this often means you were diligently taking notes of the judge’s questions and flipping through the record, locating the exact document or paragraph, and flagging it for supervising counsel before submissions resume.
To do this effectively, I have found it essential to:
- Read the pleadings and all materials before the court in advance. Reviewing them close enough to the hearing date to remain familiar with the details makes a significant difference in how well you can follow submissions and understand the issues as they unfold.
- Become comfortable not only with the evidence itself, but also with the platform that houses it. In matters before the Superior Court of Justice, that platform is Case Center, the court’s mandatory document-sharing system. Being able to navigate it quickly and confidently is a practical and meaningful way to support counsel during a hearing.
Lesson 3: What To Wear to Court
Courtroom wardrobe logistics are not discussed in law school.
Some attendances require robes. Others, such as case conferences, do not (but read the practice directions to be sure!).
For now, as an articling student, my uniform is usually a black blazer. No one expects me to appear in robes I do not yet have, so at this stage, I am thankfully spared the added stress of wondering whether my robes are at home or at the office, though I understand that day will come soon enough.
But even when robes are not required, the setting remains formal, so suit jackets and blazers are always a good option when in doubt.
Lesson 4: You Can’t Drink Coffee in Court!
One of the most devastating news I found out through experience rather than education was that you cannot drink coffee in court. Nor can you eat anything, or chew gum. But hey, at least you can drink water!
Preparation includes these practical considerations. Eat beforehand. Bring a snack for the break. If you plan to grab lunch nearby, make sure you leave enough time not only for the food to arrive and to eat, but also to debrief with counsel or take care of any last minute tasks during the recess. As a student, and even as counsel, breaks may often be spent researching, finding documents, or tracking down pinpoints, so having food handy is always a good idea.
There are also smaller details that matter, many of which I learned through guidance from helpful court staff:
- Your jacket should not be draped over the back of your chair, or lounging on top of a seat. Keep it on your lap or neatly tucked away behind your chair.
- If you are taking notes, make it clear that you are doing so for legitimate reasons. Recording a court proceeding is not permitted in any shape or format. If you are typing on a phone or tablet, it can easily be misunderstood. It is better to clarify at the outset to court staff, before the hearing commences, that you are taking notes to assist counsel and are authorized to do so, and for no other purpose.
Those are all my list of lessons learned for now!
If you have others that I missed, feel free to send me an email: fseddigh@caseyandmoss.com. I’ll take all the courtroom tips I can get.
Fara Seddigh
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.
Oct 8, 2025
When a loved one passes away, their executor (the person named in the will to manage the estate) steps into a huge responsibility. They must pay bills, manage assets, and distribute property to beneficiaries. Sounds straightforward, right?
Not always.
One Ontario case, Zimmerman v. McMichael Estate, shows exactly what can go wrong when executors don’t keep proper records. The court’s message was clear: executors must document everything, or risk personal consequences.
What Happened in Zimmerman v. McMichael Estate?
At the heart of the Zimmerman case was a simple, but critical, problem: the executor had not kept proper records of how estate assets were handled. Beneficiaries grew suspicious that money had been mishandled, and when they asked for an accounting, the executor could not produce satisfactory documentation.
The court ultimately found that this lack of transparency was unacceptable. Executors are fiduciaries, meaning the law requires them to act with honesty, care, and loyalty to the beneficiaries. That duty includes maintaining a clear record of every decision and transaction made on behalf of the estate. Without proper documentation, the executor could not prove that they had fulfilled their obligations.
What This Means for Executors
The Zimmerman case serves as a cautionary tale for anyone serving as an executor. Even if an executor is acting in good faith, failing to keep proper records can backfire. Without receipts, statements, or written explanations, beneficiaries may begin to question whether funds were used appropriately. Once trust is lost, disputes are far more likely to end up in court.
Executors must remember that they can be held personally accountable if they cannot justify their decisions. In the Zimmerman case, the court made it clear that the burden of proof rests on the executor, not the beneficiaries. This means that careful and consistent record-keeping is not just best practice – it is essential for protecting both the estate and the executor.
How Good Records Protect Families
Keeping good records benefits everyone involved in the estate process. For executors, proper documentation provides a shield against false accusations or misunderstandings. It allows them to show, step by step, that they carried out their duties responsibly and in line with the law.
For beneficiaries, good records build confidence in the process. They can see exactly how assets are being managed and distributed, which reduces suspicion and helps preserve family relationships at a time when emotions may already be strained. Most importantly, proper record-keeping prevents unnecessary litigation, saving the estate both time and money!
How Executors Can Stay on Track
Being an executor can feel overwhelming, especially if it’s your first time taking on the role. The reassuring news is that you don’t have to navigate it alone. Keeping receipts, bank records, and important correspondence together in one place goes a long way in staying organized, and offering regular updates to beneficiaries helps build trust and keep the process running smoothly.
If you feel unsure about the process, it’s completely normal to reach out to a lawyer or accountant for guidance. They can take some of the weight off your shoulders and make sure everything is done properly. By staying organized and asking for help when needed, you can carry out your duties with confidence and peace of mind.
The Takeaway from Zimmerman v. McMichael Estate
The lesson from this case is straightforward: record-keeping is not optional. Executors must document every action they take in administering an estate. Doing so protects them from liability, reassures beneficiaries, and ensures that the wishes of the deceased are respected.
Diana Begaliyeva
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.
Oct 8, 2025
I love hearing from readers of our blogs. It’s exciting to know people are reading and thinking about them, but beyond that, it’s such a pleasure to connect with other lawyers and discuss the law, outside of any specific dispute.
In my blog of January 9, 2024, When Does Marriage Revoke a Will, I puzzled about the Bill 245 amendments to sections 15 and 16 of the Succession Law Reform Act, which repealed the sections on marriage revoking a Will, and when those amendments could be said to take effect. Did they apply only to marriages after December 31, 2021 (the date the amendments took effect), only to Wills made after that date, or only for Deceased people who died after that date? Without a transition provision, it was not entirely clear.
Since writing that blog, I have heard from counsel who argued the case that the court has decided this issue. In Bolotenko v Wright Estate, 2025 ONSC 1154, the estate trustee, Aleksandr Bolotenko, sought direction from the court on whether Bill 245 applied retroactively. In that case, the Deceased died in April 2022 (after the SLRA amendments), his Will was dated March 8, 1999, and he married in February 2003. The estate trustee sought direction on whether the Bill 245 applied retroactively such that the Will was not revoked. The court held that there was no retroactive application: any marriage before January 1, 2022 had the effect of revoking any existing Will.
Now comes an interesting twist, flagged for me by another lawyer/blog reader. If the repeal of SLRA section 15(a) (which previously stated that a Will is revoked by marriage) only applies to marriages after December 31, 2021, does the repeal of the saving provisions in section 16 have a similarly delayed application?
Section 16 was repealed in its entirety by Bill 245. Previously, it set out specific situations where a Will could remain in effect despite a subsequent marriage:
16 A will is revoked by the marriage of the testator except where,
(a) there is a declaration in the will that it is made in contemplation of the marriage;
(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or
(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.
Logically, it seems that the timing of the section 16 revocation must follow that of section 15(a). If marriages before January 1, 2022 revoked existing Wills, then the section 16 provisions remain in place to save such Wills that would otherwise be revoked. The court in Bolotenko v Wright Estate applied as much. The court at paragraphs 1-2 considers whether the Will had any saving provision as described in the old section 16 (a). This seems to suggest that section applies in its entirety to pre-January 1, 2022 marriages. For example, a spouse could continue to elect under the old section 16(b) to take under the Will, regardless of its revocation.
I look forward to reading and hearing more about the court’s consideration of these provisions!
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.
