skip to Main Content
Call Now for a Free Consultation*     250-888-0002
Important Limitation Dates In Estate Litigation

Important Limitation Dates in Estate Litigation

Various different legal remedies ensure that estates distribute as the testator intended and prevent invalid disinheritance. However, claimants must adhere to certain deadlines to initiate an estate litigation case. Typically, estate litigation cases have a limitation period of either two years or six months. The specific time restrictions, however, vary between cases based on their individual circumstances and the type of claim made.

The Limitation Act

While courts typically adhere closely to limitation periods, they occasionally extend these periods in certain cases.

According to the Limitation Act, “a court proceeding in respect of a claim must not be commenced more than two years after the day on which the claim is discovered.” That is the day when the claimant became aware of the event that gives rise to the claim. It can also mean the day the claimant should have reasonably been aware. In estate litigation cases, the claim is usually discovered on or near the day that the testator passed away. In most estate litigation cases, a claimant has two years from the day of the testator’s death to take action. Exceptions exist to the standard two-year limitation period. The most common exception is for will variation claims, which have a limitation period of six months.

Limitation periods are meant to encourage people to begin their claims in a timely manner. Beyond the typical two year window, it becomes increasingly difficult to bring forth strong evidence for the court. Limitation periods incentivize people to bring their claims before the courts as soon as possible. They can also restrict people from making absurd claims many years after the passing of a testator.

180 Day (6 Month) Limitation Period

Under the Wills, Estates and Succession Act, will variation claims have a 180 day limitation period from the date probate was granted. This can include will challenges, rectification claims, and unfair disinheritance cases. The limitation period for these claims starts from the date probate is granted, not the date of the testator’s death.

Potential Exceptions to a Limitation Period

While limitation periods are strictly adhered to by the courts, there can be exceptions made in special circumstances. The case of Chan v. Lee (Estate) (2004) is an example of when the courts extended the limitation period well beyond the conventional 180 days. The daughters in this case did not raise their claim until more than a year after probate was granted. They claimed their brothers promised to remedy the situation and fairly distribute the estate between them. The sons did not notify them of the will being granted probate with the intention of abusing the limitation period.

Ultimately, the judge dismissed the sons’ cross-claim that the limitation date had passed and heard the daughters’ claim. The sisters could not have reasonably known how to act in their best interests while being mislead. Hence, the limitation period on their claim did not begin until the day the sisters discovered they had been lied to regarding the administration of the estate.

Two Year Limitation Period

Estate litigation cases typically have a limitation period of two years from the date of the testator’s death, with the exception of will variation claims.  Sometimes, the courts find it reasonable for someone to have not been aware of the death of the testator until sometime thereafter. For example, if they live outside of the country or did not keep in close contact with the testator. In such circumstances, the court can extend the limitation period for claims made by that person to two years from the date they learned of the testator’s death, if the claimant can provide reasonable evidence of their lack of knowledge at the time of death.

An example of a case with a two year limitation period could be a fraud claim against a will’s executor. A beneficiary or other interested party would have two years from when they become aware, or ought to have been aware, that the executor has committed fraud. In some cases, the discovery is not until many years after the fact, with the 2 year clock beginning to run on the date that the claimant became aware or ought to have become aware of the fraud.

If you think you have an estate litigation case that should be heard before the courts, contact an experienced estate lawyer today. The earlier the process begins, the more likely you are to be successful, and you will avoid any limitation periods restricting your access to legal remedy.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at

Back To Top