Limitation Periods That End Ontario Estate Claims
Many Ontario estate claims must be started within two years, but the two years does not always begin on the same day, it is not always the same statute doing the work, and for some proceedings there is no limitation period at all. A claim for a wrong committed by or against the deceased runs two years from the date of death under section 38(3) of the Trustee Act, and discoverability does not extend it. A dependant support application runs six months from the estate certificate. A proceeding about the validity of a will is the most nuanced of the three, because the answer turns on what relief is being asked for and on how far the estate has already progressed. This article covers the deadlines that apply to claims by and against an estate. It does not cover the executor's own filing calendar for tax returns and the Estate Information Return, which is a separate set of dates.
What Are the Main Limitation Periods?
| Claim | Period | Runs from | Governing provision |
|---|---|---|---|
| Proceeding for a declaration on the validity of a will, with no consequential relief sought | No limitation period | Not applicable | Limitations Act, 2002, s. 16(1)(a) |
| Challenge before any certificate has issued and before any distribution | May not be a claim under the Act at all | Not applicable | Roberts v. Cowie, 2026 ONSC 1412, a trial level decision |
| Challenge to a will already probated, seeking consequential relief | 2 years | Discovery of the claim | Limitations Act, 2002, ss. 4 and 5 |
| Wrong committed by the deceased, claim against the estate | 2 years | Date of death | Trustee Act, ss. 38(2) and 38(3) |
| Wrong to the deceased or their property, claim brought by the estate | 2 years | Date of death | Trustee Act, ss. 38(1) and 38(3) |
| Dependant support application | 6 months | Issue of the estate certificate | Succession Law Reform Act, s. 61(1) |
| Filing the spousal election | 6 months | Date of death | Family Law Act, s. 6(10) |
| Claim to an interest in land | 10 years | Depends on the claim | Real Property Limitations Act, s. 4 |
| Ultimate long stop for claims governed by the Act | 15 years | The act or omission on which the claim is based | Limitations Act, 2002, s. 15 |
| Vesting of undistributed estate real property | 3 years | Date of death | Estates Administration Act, s. 9 |
How Long Do You Have to Challenge a Will?
It depends on what you are asking the court to do and, after Roberts, on how far the probate process has progressed. There is no single answer to this question in Ontario, and material that gives one is oversimplifying.
Where consequential relief is sought, the basic two year period applies. In Leibel v. Leibel, 2014 ONSC 4516, a son applied more than two years after his mother's death to have her wills declared invalid. He also sought an order revoking the certificate of appointment, the removal of the estate trustees, a passing of accounts, the appointment of an estate trustee during litigation, and damages against the drafting solicitor. The court held the application statute-barred, reasoning that the Limitations Act, 2002 exists to protect estate trustees from being sued years after a death once assets have been distributed or become hard to trace.
Where only a declaration is sought, there may be no limitation period at all. Section 16(1)(a) of the Limitations Act, 2002 provides that there is no limitation period for a proceeding for a declaration if no consequential relief is sought. In Piekut v. Romoli, 2020 ONCA 26, the Court of Appeal upheld a finding that an application simply to establish whether codicils were valid, where nobody had propounded the will and no consequential relief was claimed, fell within that provision. The application had sat for years and was still allowed to proceed.
Procedural posture matters as well as relief. In Roberts v. Cowie, 2026 ONSC 1412, the Superior Court refused summary judgment against a will challenge brought roughly two and a half years after the death. The Court held that a challenge to the validity of a will is not necessarily a "claim" under the Limitations Act, 2002 at all, because probate proceedings operate in rem: they determine the status of a testamentary document for the public at large rather than resolving a private claim for injury, loss or damage. An objector, the Court reasoned, is not alleging a wrong done to them. They are requiring the person propounding the will to prove it.
The Court distinguished the earlier authorities on their facts. In Roberts no certificate of appointment had issued, no distributions had been made, and no estate trustee had been formally appointed. Leibel involved a will that had already been probated and was being challenged after the fact. The Court considered that dismissing an untested challenge on limitation grounds could result in an invalid will being probated uncontested, which it regarded as contrary to the public interest.
Treat Roberts as a trial level decision, not a rewriting of the law. It does not overrule Leibel or Piekut, and it has not been considered on appeal. What it establishes for practical purposes is that the answer depends on procedural posture as well as on relief: whether probate has already been granted, whether assets have been distributed, and whether the proceeding is contesting a grant or attacking one already made.
Courts examine the characterisation closely. Adding a claim for a declaration to a pleading that also seeks consequential relief does not engage section 16(1)(a). Ontario courts have declined attempts to recast a substantive will challenge as purely declaratory, and the practical question is whether the court's role would be complete once the declaration is granted.
The two years, where it applies, runs from discovery rather than automatically from the death. Section 5 of the Act sets out when a claim is discovered, which is the day the claimant first knew, or ought reasonably to have known, that the loss occurred and that a proceeding was an appropriate remedy. In many cases those dates sit close together, because a beneficiary reads the will shortly after the death. Where a will was concealed, they can separate considerably.
The practical consequence is that framing matters before filing, not after. A claimant who wants the estate redistributed is seeking consequential relief whatever the notice of application says. Our overview of estate disputes in Ontario covers how these matters are resolved.
Why Is the Trustee Act Deadline Different?
Section 38 has two directional halves, and they are frequently confused. Subsection 38(1) allows the executor or administrator of a deceased person to maintain an action for torts or injuries to the person or the property of the deceased, with the same rights and remedies the deceased would have had. That is the estate suing outward. Subsection 38(2) provides that where a deceased person committed or is by law liable for a wrong to another person or to another person's property, the person wronged may maintain an action against the executor or administrator. That is the estate being sued. Both exclude libel and slander.
Section 38(3) attaches a two year limit that runs from the date of death. This is the provision that catches people out, for two reasons. The clock starts on the death rather than on discovery, and the Court of Appeal has held that the discoverability principle does not apply to it. A claimant who did not know about the wrong, and could not reasonably have known, is still out of time at the second anniversary.
Subsection 38(3) caps both halves. An action under section 38 shall not be brought after two years from the death of the deceased. So an estate trustee who inherits a potential negligence claim belonging to the deceased under subsection 38(1) has two years from the death to start it, regardless of when they discovered it, and a person wronged by the deceased who sues under subsection 38(2) is on the same clock.
The characterisation of the claim decides which period applies, and this is where the analysis gets genuinely difficult. A constructive trust claim over land has been treated as a claim to an interest in land, attracting the ten year period under section 4 of the Real Property Limitations Act. Where section 38(3) of the Trustee Act is engaged, the Court of Appeal has held that the two year period governs an equitable trust claim against an estate instead. A common-law partner claiming an interest in a home can therefore find the answer turns on how the claim is framed rather than on what happened.
What About Claims Between Beneficiaries and the Estate Trustee?
The right to compel a passing of accounts does not have a clearly settled limitation period. Courts have accepted that the obligation to account does not last forever, and that record-keeping obligations are not perpetual, but there is no decision fixing a single period for an application to compel an accounting. Our guide to the passing of accounts in Ontario explains how the process works.
Objections on a passing of accounts have their own deadline. A person served with an application to pass accounts who wishes to object must serve and file a notice of objection to accounts at least 20 days before the hearing date. That is a procedural deadline within a proceeding rather than a limitation period, and missing it is a different problem from missing a limitation period.
Claims for breach of trust generally fall under the basic two year period, running from when the beneficiary discovered or ought to have discovered the breach. Concealment by the trustee affects when discovery occurred.
What Is the Six Month Spousal Election?
A surviving married spouse in Ontario has a choice. They may take what the will gives them, or what the intestacy rules give them, or they may elect instead to receive an equalization payment calculated as though the marriage had ended by separation.
The election is filed within six months of the death. Section 6(10) of the Family Law Act requires the election to be in the prescribed form and filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death.
Missing it is not automatically fatal. Section 6(11) provides that a spouse who does not file in time is deemed to have elected to take under the will or under the Succession Law Reform Act, unless the court on application orders otherwise. Section 2(8) of the Act contains an extension power, and Ontario courts have granted extensions where the delay was explained, incurred in good faith, and no person would suffer substantial prejudice. The equalization application itself carries its own limitation rules under section 7(3).
The trigger differs from the dependant support window, which runs from the certificate. A surviving spouse entitled to consider both is working against two clocks that start on different days.
Where This Goes Wrong
Assuming discoverability always saves you. It does not apply to section 38(3) of the Trustee Act, and the courts have enforced that strictly.
Waiting for probate before doing anything. Two of these clocks run from the date of death and do not wait for a certificate. An estate where nobody applies for probate for two years can produce a situation where the certificate issues after several claims have already expired.
Assuming the estate will still be there. A limitation period preserves the right to sue. It does not preserve the assets. Where a dependant support application is brought late, the court may allow it only as against the portion of the estate remaining undistributed.
Treating the fifteen year ultimate period as a safety net. Section 15 is a long stop that runs alongside the basic two year period for claims governed by the Limitations Act, 2002, subject to its own rules and exceptions. It is not a default period assigned to claims that have no other period. It never extends a two year period that has already expired.
Framing the claim without thinking about what follows from the framing. Whether a claim is characterised as a wrong against a person, a claim to an interest in land, or a breach of trust can change the deadline from two years to ten. Whether a will proceeding seeks consequential relief, and whether it is brought before or after a certificate has issued, can change it from two years to none at all. This is a decision to take before the application is issued.
Waiting on the strength of Roberts. It is a trial level decision, it turned on an estate where nothing had yet been done, and an appellate court has not considered it. Delay remains the thing most likely to end a will challenge.
If you are wondering whether a claim is still available, the first two questions are the date of death and the date the certificate issued. You can book a free call and we will tell you which clocks are still running.
Frequently Asked Questions
How long do you have to contest a will in Ontario?
It depends on the relief sought and on how far the estate has progressed. Where consequential relief is claimed, such as revoking a certificate, removing an estate trustee or redistributing the estate, the basic two year period applies from discovery, as in Leibel v. Leibel, 2014 ONSC 4516, which concerned a will already probated. Where a proceeding seeks only a declaration as to validity, section 16(1)(a) provides that there is no limitation period, as accepted in Piekut v. Romoli, 2020 ONCA 26. And in Roberts v. Cowie, 2026 ONSC 1412, a trial level decision, the Superior Court held that a challenge brought before any certificate had issued and before any distribution was not a claim under the Act at all, because probate proceedings operate in rem. There is no single number, and the framing should be settled before the application is issued.
What is section 38 of the Trustee Act?
It has two directional halves. Subsection 38(1) lets an executor or administrator maintain an action for torts or injuries to the deceased or the deceased's property. Subsection 38(2) lets a person wronged by the deceased sue the executor or administrator. Both exclude libel and slander. Subsection 38(3) imposes a two year limitation period running from the date of death on any action under the section, and the courts have held that the discoverability principle does not apply to it.
Can a limitation period be extended in an Ontario estate case?
It depends on the claim, and each route is narrow. Fraudulent concealment can affect when a claim was discovered under the Limitations Act, 2002. Section 61(2) of the Succession Law Reform Act allows a late dependant support application, but only as against the undistributed portion of the estate. Section 2(8) of the Family Law Act allows an extension of the election period where its test is met. The period in section 38(3) of the Trustee Act is not subject to discoverability.
Does the limitation period start at death or at probate?
It depends on the claim. Claims under section 38(3) of the Trustee Act and the filing of the spousal election under section 6(10) of the Family Law Act run from the date of death. A dependant support application runs from the issue of the estate certificate. A will challenge seeking consequential relief runs from discovery, and a proceeding seeking only a declaration may have no limitation period at all.
How long do you have to sue an executor personally?
A claim for breach of trust generally falls under the basic two year period, running from when the beneficiary discovered or ought reasonably to have discovered the breach. A passing of accounts is the more usual route, and the court can review the administration and make orders including a costs order against the trustee personally.
Is there a deadline to claim an inheritance in Ontario?
There is no single deadline for receiving a gift under a will. What is time limited is bringing a claim: challenging the will, applying for dependant support, making the spousal election, or suing the estate trustee. Real property that is left undistributed for three years can also vest in the beneficiaries automatically under section 9 of the Estates Administration Act.
This article provides general information about Ontario law and is not legal advice. Speak with a lawyer about your specific circumstances.
