Limitation Periods and Will Challenges
There has been some controversy as to whether a Will challenge is subject to a limitation period under the new Limitations Act, 2002, which came into force January 1, 2004.
In her excellent paper presented at the 10th Annual Estates and Trusts Summit last week, Anne Werker states that in her view no limitation period applies to Will challenges. Not even the absolute 15 year limitation period set out in the Limitations Act, 2002 applies. In other words, a Will challenge is not statute-barred for being out of time. Keep in mind that the Limitations Act, 2002 was hailed at the time as bringing under one roof a myriad of limitation periods and imposing an almost universal 2 year limitation period (subject only to reasonable discoverability).
According to Anne, the Limitations Act, 2002 will not bar an application for a judicial declaration regarding the validity of the Will where, for example, there are grounds discovered subsequent to the issuing of a certificate of appointment of estate trustee, such as a later Will, or evidence that brings the Will into question.
However, Anne does acknowledge that the return of an issued certificate of appointment of estate trustee is not automatic when a Will challenge is launched after a certificate of appointment has been issued. A party may rely on equitable relief such as laches (failure to act) or acquisition (concurrence). As Anne points out in her paper:
“When a Certificate of Appointment of Estate Trustee has already been issued, on notice to the interested parties, and if the grounds to challenge the Will are weak, unexplained delay will be a significant factor in whether the Court exercises discretion to allow a Will challenge to proceed.”
No doubt, the courts will eventually be asked to consider limitation periods and Will challenges, but in the interim Anne’s paper has made a valuable contribution to the debate.
À demain
Justin
