When Is A Will Challenge Barred By Ontario’s Limitation Period?

A recent Ontario Superior Court of Justice decision provides important guidance on limitation periods in estate litigation and whether a will challenge can be dismissed for delay before the validity of the will is ever determined.

In Roberts v. Cowie, 2026 ONSC 1412, the Court considered whether a challenge to a will was barred by Ontario’s two-year limitation period under the Limitations Act, 2002. The decision is significant for estate litigators and parties involved in contested wills because the Court ultimately held that a challenge to the validity of a will is not necessarily a “claim” caught by the limitations regime.

The dispute arose following the death of Catherine Cowie in August 2021.

Catherine had executed two wills:

• a May 2019 will leaving the residue of her estate to her common law spouse, and failing him, to her cousin Michael Cowie; and
  
• a later December 2019 will leaving the residue instead to Terry Roberts, her late spouse’s brother.

After Catherine’s death, Michael Cowie challenged the later will, alleging:

• lack of testamentary capacity;
  
• undue influence;
  
• lack of knowledge and approval; and,
  
• improper execution of the will.

However, approximately two and a half years passed before formal steps were taken to move the litigation forward.

Terry Roberts then brought a motion seeking summary judgment dismissing the will challenge on the basis that it was statute-barred under Ontario’s Limitations Act, 2002.

The central issue before the Court was whether a challenge to the validity of a will constitutes a “claim” under the Limitations Act, 2002.

Under the legislation, most civil claims must be commenced within two years from the date of discovering such a claim. However, the Court carefully distinguished between:

• ordinary civil claims seeking compensation for injury, loss, or damage; and,
  
• probate proceedings, which involve the Court determining whether a document truly reflects a deceased person’s testamentary intentions.

The Court emphasized that probate proceedings are unique because they operate “in rem”: they determine the status and validity of a will for the benefit of the public at large, not merely the interests of private litigants.

Importantly, the Court held that a person objecting to a will is not necessarily claiming damages arising from someone else’s wrongdoing. Instead, the objector is requiring the propounder of the will to prove its validity.

As a result, the Court concluded that the Limitations Act, 2002 did not bar the will challenge in this case.

The Court also reviewed prior Ontario estate litigation decisions dealing with limitation periods in will challenges. In particular, the Court distinguished cases where:

• a will had already been probated;
  
• estate assets had already been distributed; or
  
• parties sought substantive consequential relief beyond determining validity of the will itself.

Here, no certificate of appointment had yet been issued, no distributions had occurred, and the estate trustee had not yet been formally appointed. The Court found those distinctions important.

One of the more notable aspects of the decision was the Court’s emphasis on the public interest involved in probate proceedings.

The Court stated that dismissing the challenge on limitation grounds without ever testing the validity of the will could lead to an improper result, including the probate of a potentially invalid will:

“…To dismiss the Application on the basis it is “out of time” would lead to an absurd result – Mr. Cowie’s objection to the December Will would never be tested and Mr. Roberts’ application for a certificate of appointment would  proceed on an uncontested basis. That is, the December Will would be probated (propounded) in circumstances where it may have been executed by Catherine under duress and/or without testamentary capacity. To do so would be contrary to the public interest as being contrary to the wishes of the testator.”

The Court ultimately refused to grant summary judgment and allowed the will challenge to proceed.

This decision is an important reminder that limitation periods in estate litigation can be highly nuanced.

The case reinforces several important principles:

• not every estate proceeding constitutes a “claim” under the Limitations Act, 2002;
  
• probate proceedings are fundamentally different from ordinary civil litigation;
  
• Ontario courts remain cautious about barring will challenges before the validity of a testamentary document is determined; and
  
• whether a limitation period applies may depend heavily on the procedural posture of the estate proceeding.

If you are involved in an Ontario estate dispute or require advice regarding a contested will, our team can assist in assessing the legal and procedural issues that may affect your claim. Contact us at 416.901.9984 or info@pintoshekib.ca.