While looking through the news recently one story in particular caught my attention. As reported by the Telegraph, a pet tortoise was recently found alive in a locked store room in Brazil more than 30 years after going missing. According to the article, the owners of the tortoise had assumed that the tortoise had run away 30 years ago after the door was left open. It was only after their father died recently that the children began to clear out a room full of old electrical items that was always kept locked. While emptying out the room, the tortoise was found alive and well. It is believed that the tortoise stayed alive by eating termites found in the wooden floor.

But how, you ask, does this story in any way relate to estates? Is this not just an interesting story that you wanted to share? To this I would say, fair comment. Through the power of the hypothetical however this story can be related back to estates.

And here is the hypothetical: what if this tortoise had the same legal rights as a human being, was an Ontario tortoise, and was left a bequest 29 years ago under Grandma Tortoise’s will? Would these funds still be available for our tortoise to enjoy after all of these years?

Assuming that this tortoise’s loved ones had not gone through the process of declaring the tortoise dead in accordance with the Declarations of Death Act, and this was only ever a “missing tortoise”, a prudent Estate Trustee in administering Grandma Tortoise’s Estate would have paid the bequest left to the tortoise into court.

Rule 72 of the Rules of Civil Procedure is the rule that governs the payment of money into court. Luckily for our tortoise, had the Estate Trustee paid the bequest into court, these funds would likely have incurred interest for all of these years and our tortoise could be a rich tortoise.

Unfortunately for our tortoise, had the Estate Trustee not paid these funds into court, and Grandma Tortoise’s Estate no longer had any assets left to satisfy the bequest, our tortoise may be out of luck. It is arguable that as a result of the Limitations Act, 2002, and the 15 year ultimate limitation period established by s. 15(2), any claim that our tortoise may have had against the Estate Trustee for not paying the funds into court may now be statute barred.

Should this happen, our tortoise may have to get creative in their legal argument. Section 15(4)(a) of the Limitations Act, 2002 provides that the 15 year ultimate limitation period does not run against a person who is incapable to commence the proceeding as a result of their physical condition. Maybe our tortoise can equate being locked in a store room for 30 years with being physically unable to commence a claim.

Have a great weekend.

Stuart Clark