Tessaro v. Gora, 2025 ONSC 198
The Ontario Superior Court of justice recently dismissed a lawsuit against a lawyer alleging negligence in drafting a Will, ruling it was beyond the allowable time limit to bring on the lawsuit.
In 1991, the deceased retained John Leonard Zigmund Gora ("Mr. Gora"), lawyer, to draft his Will. The deceased had three sisters – one that had passed away at the time the Will was drafted.
A part of the Will that Mr. Gora drafted read:
"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."
Per Stripes, which means 'by branch', is a legal term that stipulates that if a beneficiary passes before the Will maker, that particular beneficiary's share of the inheritance will go to his/her heirs (i.e., children and grandchildren).
Whereas '"to such of my sisters living at the time of my death' indicates that the entirety of the deceased's estate should be divided only amongst the two living sisters. This would mean that the children/grandchildren of the sister that died before the Will maker will receive nothing.
The deceased passed away in July 2018, and only then was this mistake in the Will brought to light.
The deceased's estate brought an action against Mr. Gora for negligence regarding this mistake. Mr. Gora, on the other hand, argued that the claim was filed too late and moved to dismiss the lawsuit – that is, it was past the limitation period.
What is a Limitation Period
A limitation period is a legally defined time frame within which an individual must commence legal proceedings to enforce a claim. Usually, an individual has a two-year period from the date the claim was discovered or should have been discovered to file a lawsuit. An ultimate limitation period, which is usually 15 years in most provinces, is a final deadline by which any legal action must be commenced, regardless of when the claim was discovered.
The deceased's estate argued that Mr. Gora's negligence was discovered after the deceased passed away, and as such, the claim for negligence is well within the allowable time. Mr. Gora, however, argued that the time started running the day the Will was signed by the deceased, in 1991. Mr. Gora argued that the deceased had over 25 years with the Will. Essentially, that the deceased should have discovered this mistake.
The court discussed the purpose of limitation periods and the ultimate limitation period, stating:
"Limitations statutes reflect public policy about efficiency and fairness in the justice system. They promote finality and certainty in legal affairs by ensuring that potential defendants are not exposed to indefinite liability for past acts."
The Court's Decision: the court dismissed the claims and ordered the plaintiffs to pay Mr. Gora $30,000 in legal costs.
Implication for BC
Like the Ontario legislation, the usual limitation period to commence an action in BC is two years from the date the action is discovered. Similarly, the ultimate limitation period in BC is 15 years from the date the action is discovered.
This Ontario decision could be looked at and followed by BC courts in similar circumstances. If this decision is followed, a Will maker who lives more than 15 years after a lawyer negligently drafts a Will, their beneficiaries may lose their right to sue before the Will takes effect, and ultimately, this means a Will makers true wishes may be lost.
About Mackrell International – Canada - Lindsay Kenney LLP is a full service business law firm with offices in Vancouver and Langley, BC and a member of Mackrell International. Mackrell International – Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.
