The Clock Starts at Drafting

Ontario’s 15-Year Limitation on Negligent Will Drafting

By Cristina MacKenzie

As we head into the New Year, many of us take stock of what matters most, making it an ideal time to review your Will, especially in light of a recent decision confirming a 15‑year ultimate limitation period for drafting errors.

Last year, the Ontario Superior Court of Justice clarified that claims against lawyers for negligent will drafting are subject to an  ultimate 15-year limitation period.[1] The ruling in Tessaro v Gora (“Tessaro”) highlights the criticalness of careful drafting and record-keeping by lawyers, while emphasizing the importance for individuals to review and update their Wills at least every 15 years to avoid being barred from pursuing claims related to drafting errors.

Case Background

In Tessaro, the plaintiffs – beneficiaries of Leopold Ryczkowski’s (“Mr. Ryczkowski”) estate – brought two legal actions challenging the validity of a Will drafted in 1991 by lawyer, John Leonard Zigmund Gora (“Mr. Gora”), and executed by Mr. Ryczkowski’s on November 6, 1991 (the “Will”). The dispute arose from ambiguous language in the Will regarding the distribution of Mr. Ryczkowski’s real estate.

In particular, the Will said, among other things:

“To such of my sisters living at the time of my death, I give whatever real estate that I own or that may be in my possession at the time of my death, in equal shares per stirpes.”[2]

When Mr. Ryczkowski’s passed away on July 16, 2018, he was survived by two sisters, while a third sister had predeceased him, leaving children. This circumstance exposed ambiguity in the wording of the Will.  

By requiring that beneficiaries be “living at the time of my death,” the clause appeared to limit the gift to surviving sisters only.[3] Yet the direction to distribute per stirpes[4], meaning by family branch, contemplates a substitution: if a sister predeceased the testator, her children would stand in her place and inherit her one-third share.[5]

This ambiguity led to a critical question: should Mr. Ryczkowski’s real property pass in halves to the two living sisters, or in thirds, with the deceased sister's share flowing to her issue?

The beneficiaries ultimately settled the interpretation dispute privately, leaving Mr. Ryczkowski’s actual intentions unresolved and the Will's proper intention undetermined.

Instead, the plaintiffs' claim against Mr. Gora rested on the allegation that negligent drafting forced them into a settlement, resulting in distributions that fell short of what Mr. Ryczkowski actually wanted them to receive.[6]

Does the Ultimate 15-Year Limitation Period Apply?

The dispute in Tessaro centred on whether the plaintiffs’ claim against the drafting solicitor, Mr. Gora, was extinguished by the 15‑year ultimate limitation period in s. 15(2) of the Limitations Act, 2002.[7]

Section 15(1) and (2) of the Limitations Act, 2002 provide:

Ultimate limitations period

15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.[8]

General

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.[9]

In this case, the court was required to pinpoint the relevant “act or omission”, specifically whether the act or omission occurred in 1991, when the Will was originally prepared by Mr. Gora, or in 2018, when the testator, Mr. Ryczkowski, died and the Will first became operative?

The answer to that timing question determined whether the claim was procedurally alive or permanently out of time.

The defendant, Mr. Gora, argued that the only actionable conduct was the alleged negligent drafting in 1991. Therefore, the 15‑year limitation period expired long before the plaintiffs commenced their proceeding.[10]

In response, the plaintiffs argued a fundamentally different characterization of when their cause of action arose. They argued that the limitation period should start on July 16, 2018, the date of Mr. Ryczkowski’s death, because a Will has no legal effect until the testator dies.[11] In their view, starting the clock at the drafting date would unfairly bar negligence claims in estate planning matters before any beneficiary could know of, or be affected by, the drafting error.

Decision – The 15-Year Ultimate Limitation Period Applies

Justice Myers analyzed when the act or omission occurred to determine when the limitation clock began. Justice Myers found that there was no omission, but the act giving rise to the claim happened in November 1991, when Mr. Gora negligently drafted the Will.[12]

While Justice Myers acknowledged the importance of holding lawyers accountable for negligent drafting, both to protect beneficiaries and maintain the integrity of the succession system, he emphasized that policy considerations cannot override the clear wording of the Limitations Act, 2002.[13] Therefore, the plaintiffs were out of time to bring their claim against Mr. Gora.

Practical Takeaways for Lawyers and Clients

The Tessaro decision offers important lessons for both lawyers and individuals planning their estates:

1. Be cautious with precedent Wills:

   Precedent Wills often include standard terms like “per stirpes” or “per capita”. These may not accurately reflect the testator’s intentions and can create ambiguity. Always tailor language to the client’s specific wishes and intentions.

2. Review and update Wills regularly:

   A Will should be reviewed and updated, if necessary, at least every 15 years. This ensures the document reflects current intentions and avoids being barred by Ontario’s ultimate limitation period as outlined in Tessaro. Reviews of estate planning documents are especially critical when life circumstances, assets or family relationships change.

3. Avoid DIY Wills:

   “Do-it-yourself” Wills often contain vague or outdated language that may lead to disputes. Comprehensive and thoughtful drafting by an experienced Wills and Estates lawyer is essential to avoid issues in the future.

4. Plan for complexity: 

   Where family structures or assets are complex, extra care in drafting and explanation of terms is crucial to avoid future disputes and ensure all planning documents accurately reflect the testator’s wishes.

Please speak with one of the Wills and Estates Lawyers at SorbaraLAW to ensure your Will is up to date or book a meeting to review your current estate planning documents for peace of mind that they still reflect your wishes.