Tessaro v. Gora: Beneficiaries’ Negligence Claim Against Lawyer Dismissed Due to Expired Limitation Period
Tessaro v. Gora: Beneficiaries’ Negligence Claim Against Lawyer Dismissed Due to Expired Limitation Period
Case: Tessaro v. Gora, 2025 ONSC 198 (CanLII)
The case involved two actions brought by beneficiaries under the will of Leopold Ryczkowski, who alleged that his lawyer, John Leonard Zigmund Gora, negligently drafted the will in 1991. The will contained ambiguous language regarding whether the daughters of Ryczkowski’s predeceased sister were entitled to inherit a share of the estate. After Ryczkowski’s death in 2018, the beneficiaries settled a will interpretation dispute out of court and subsequently sued the drafting lawyer, claiming they received less than what Ryczkowski had intended.
The defendant lawyer moved to dismiss the claims under Rule 21.01(1)(a) of the Ontario Rules of Civil Procedure, arguing that the fifteen-year ultimate limitation period under section 15(2) of the Limitations Act, 2002 had expired. The plaintiffs countered that the limitation period should begin at the testator’s death, as beneficiaries cannot sue before a will takes effect. The court had to determine whether the limitation period started when the will was drafted in 1991 or when the testator died in 2018.
The court ruled that the limitation period began when the will was drafted, as the “act or omission” that formed the basis of the claim was the lawyer’s drafting of the will in 1991. Under the transition provisions of the Limitations Act, 2002, the ultimate limitation period expired fifteen years after January 1, 2004, meaning it ended on January 1, 2019. Since the lawsuit was not commenced until late 2020, it was statute-barred. The court also held that the Limitations Act, 2002 does not provide an exception for will beneficiaries suing a drafting lawyer and that, while this could lead to unfair results, it was the Legislature’s role to create such exceptions, not the court’s.
The plaintiffs also attempted to rely on section 38(1) of the Trustee Act, which allows estate trustees to sue for damages to the person or property of the deceased with the same rights the deceased would have had if alive. The court found this provision inapplicable because neither Ryczkowski nor his estate had an interest in the plaintiffs’ claims. The plaintiffs’ claims lay purely with themselves because only they were affected by any reduction in their share of the estate. Furthermore, any right Ryczkowski may have had to sue the defendant lawyer expired on January 1, 2019, and the Trustee Act does not extend limitation periods that expire after a testator’s death.
Justice Myers acknowledged that this decision places future beneficiaries in a unique position. Beneficiaries have a common law right to sue a testator’s drafting lawyer for negligence, but the strict application of the Limitations Act may bar claims before they even arise. However, he emphasized that it is not the court’s role to draft legislation and that the judiciary must interpret statutes in accordance with their legislative purpose. It is up to the Legislature to consider social policy and make necessary amendments to the law.
This decision has significant implications for both testators and beneficiaries. It may encourage testators to re-examine and update their wills periodically to ensure that they reflect their true intentions. It also confirms that the Limitations Act restricts the common law rights of beneficiaries, meaning that in some cases, beneficiaries may lose the ability to sue negligent drafting lawyers altogether. As this is a recent decision, its practical consequences remain to be seen, and it will be interesting to observe whether it leads to legislative changes.
