Ontario’s estates and trusts landscape is evolving, with growing concerns around mental capacity, financial abuse and dependant relief claims. Legislative changes, including amendments to the Succession Law Reform Act, and recent case law developments are shaping how wills, estate disputes and limitation periods are interpreted. Lawyers practising in this area must navigate complex intersections with tax, family, real estate and corporate law, while guiding clients through emotionally charged disputes and proactive estate planning.
Below, you will find our summary of emerging trends, legislative developments, key case law updates and notable legal complexities in relation to estates and trusts.
Emerging trends
In Ontario, the volume of legal requests related to issues arising out of declining mental capacity is increasing. This is occurring for two key reasons: (i) the aging population, and (ii) increased awareness by the public around incapacity concerns and the resulting increased risk for financial abuse. Whether lawyers are being consulted about taking preventative steps to prepare for incapacity or when mental capacity has already declined and financial abuse is suspected, it is clear that this is a rapidly growing area of concern. In a recent research report conducted by STEP (the Society of Trust and Estate Practitioners), 57% of estate and trust professionals across the globe had observed instances of financial abuse or suspected financial abuse of persons with diminished capacity.
Financial abuse of vulnerable persons with diminished capacity can generally be filtered into two buckets: (i) where the abuser acts with intention to defraud the person with diminished capacity, or (ii) where the abuser is acting as a fiduciary, or de facto fiduciary, and is ignorant of the role and responsibilities with which they have been entrusted, leading to unintentional financial abuse of the vulnerable person. Legal and other professionals play an important role in mitigating both risk areas. First, professionals need to be aware of the increasing financial abuse and be alive to red flags pertaining to same when taking instructions from vulnerable persons (or their representatives). Second, professionals can help to mitigate inadvertent abuse by encouraging the substitute decision-maker to seek out legal advice early (even before they begin acting, if possible).
Another area that seems to be growing is dependant relief claims. In Ontario, this is where a dependant has been inadequately provided for by a deceased, either pursuant to the deceased person’s will or as a result of intestate succession. The two types of dependant claims that appear to be on the rise are: (i) in the blended family scenario, where the second spouse asserts a dependant relief claim; or (ii) where an adult child, who has not moved out of the family home or has otherwise been financially supported by their deceased parent to some degree, asserts a greater share to the estate than their siblings, on the basis of an increased need for support.
Recent legislative developments
As of January 1, 2022, a number of amendments to the Succession Law Reform Act came into effect.
Amendments included changes to sections 17 and 43.1, which now provide that separated spouses (not only spouses who have obtained a divorce) will also have their rights revoked in estate matters, such that gifts under the will are revoked, their appointment as executor is revoked and they have no rights on an intestacy. To qualify as “separated,” the legislation requires that prior to the testator’s death, the spouses must meet any of the following criteria: (1) they lived apart for at least three years due to the breakdown of their marriage; (2) they entered into a separation agreement; or (3) they are subject to a court order or arbitration award. The transition provisions provide that the separation event must have occurred after January 1, 2022 (see also McDowell v. McDowell, 2024 ONSC 2301), such that as of January 1, 2025, we will start to see spouses who have been living apart for a sufficient period of time to now satisfy the definition of “separated.”
Key case law updates
Ontario has had a recent spate of cases dealing with limitation periods in estate proceedings.
Tessaro v. Gora, 2025 ONSC 198: This recent case from the Superior Court of Justice of Ontario holds that the 15-year ultimate limitation period set out in the Limitations Act, 2002, SO 2002, c. 24 Sch B (“Limitations Act”), runs from the date that the drafting lawyer negligently drafted the will and not from the date of the deceased’s death. The key takeaway is that wills lawyers in Ontario should be counselling people to check their wills at least every 15 years. Otherwise, if an error is not discovered until after death and the will is more than 15 years old, the beneficiaries will have no recourse against the drafting lawyer.
Shannon v. Hrabovsky, 2024 ONCA 120: This Court of Appeal case provides guidance on how the discoverability principle in the Limitations Act applies to will challenges. While the two-year limitation period for a will challenge presumptively starts ticking on the date of death, the discoverability principle will extend the limitation period to when the disappointed beneficiary has knowledge of the existence and contents of the impugned will. In other words, mere knowledge of the existence of a will is insufficient to start the limitation clock for a will challenge; rather, the contents of the will must also be known to the claimant.
Ingram v. Kulynych Estate, 2024 ONCA 678: In this case, the deceased failed to provide for his common-law spouse in his will. More than four years after his death, the common-law spouse commenced an application for, among other things, a share of the deceased’s home on the basis of unjust enrichment and constructive trust (as the deceased had allegedly rented out his home while residing with his common-law spouse in her home). At issue was which limitation period was applicable: the 10-year limitation period under s.4 of the Real Property Limitations Act, RSO 1990, c. L.15, or the strict two-year limitation period for claims against an estate pursuant to s. 38(3) of the Trustee Act, RSO 1990, c. T.23. The Court of Appeal confirmed that the two-year limitation period applied, as the limitation period in the Trustee Act applies to all actionable wrongs to a claimant for which the deceased may be found liable and confirmed the overarching interests of justice that estates be efficiently and quickly administered.
Complexities of estates and trusts law
From a substantive law perspective, estate, trust and capacity disputes and planning intersect with a variety of other practice areas, including tax law, family law, real estate law and corporate law. Spotting these issues and knowing when to seek help from appropriate legal professionals is critical.
From a client perspective, estate and capacity disputes are often emotionally exhausting. They may raise many years (or even decades) of family emotional turmoil that has not had the opportunity to be aired. Clients want — and deserve — to have their position heard but may lose sight of the end game and forget about the “cost-benefit” analysis of litigation. An advisor’s role is to help clients navigate the issues worth litigating versus issues better left in the past, so they can move forward with the litigation — and their lives.
From an estate and capacity planning perspective, it is very challenging when clients leave it too late to plan (one is never too young to plan for incapacity or death — a common misconception!). Declining capacity is a real risk, and it is best to address things well before any capacity concerns have arisen, failing which a client may not be able to effect their plan, or their plan may be susceptible to litigation.
Conclusion
Driven by an aging population and heightened public awareness, Ontario’s estates and trusts law is seeing increased focus on mental capacity, financial abuse and dependant relief claims. Recent legislative updates and case law developments underscore the need for vigilance and proactive legal guidance to protect vulnerable individuals, ensure estates are properly managed and uphold legal rights amid increasing complexities.
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Holly V.A. Cunliffe is a partner at Aird & Berlis. As a member of the firm’s Tax Group and Estates & Trusts Group, Holly represents individuals and trust companies with a range of court proceedings, such as will challenges, applications to pass attorney and trustee accounts, dependent support claims, rectification and interpretation of wills and trusts, variations of trust deeds, power of attorney and capacity disputes, estate and trust administration issues, trustee applications for advice and directions, appointment or removal of trustees/guardians, breaches of trust and guardianships. She is preferred counsel for LawPRO on matters of professional negligence with respect to estate and trust issues.
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Lexie Misterski is an articling student at Aird & Berlis. Lexie summered at the firm in 2023. Lexie recently graduated from the Common Law program at the University of Ottawa. She has a Bachelor of Arts from Western University, where she studied Media Information and Technoculture. Before joining the Aird & Berlis team, Lexie worked at the Canadian Internet Policy and Public Interest Clinic (CIPPIC). She also completed a Research Fellowship at the Law Commission of Ontario where she contributed to the Consumer Protection in the Digital Marketplace Project.