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Wills Variation:Factors Extending the Limitation Act

Every type of court action has some limitation in the number of years within which that type of action must be brought. The only exception I can think of it relates to claims of sexual assault of minors.

For example in Wills variation cases a claim must be brought within 180 days of the grant of probate unless an action has already been commenced at which time the “too late litigator” can still bring an action by way of counter claim within the action that was started.

Part 4 of the Limitation act relates to factors affecting limitation periods to typically extend them.

S 22. Limitation act provides:

1) If a court proceeding has been commenced in relation to a claim within the basic limitation period in ultimate limitation period applicable to the claim and there is another claim (the related claim) relating to or connected with the first mention claim, the following may, in the court proceeding, be done with respect to the related claim, even though a limitation period applicable to either or both of the claims has expired:

a) Proceedings by counterclaim may be brought, including the addition of a new party is a defendant by counterclaim;

b) Third-party proceedings may be brought;

c) Claims by way of set off may be advanced;

d) New parties may be added or substituted as plaintiffs or defendants.

2. Sub-Section 2 declares that nothing in subsection 1 gives a person a right to commence a court proceeding under subsection 1(a) or be in relation to a claim for contribution or indemnity after the expiry of a limitation period applicable to that claim.

The judge ultimately has judicial discretion to refuse relief on grounds unrelated to the expiry of a limitation period.

Subsection 5 states that in any court proceeding, the court may, on terms as to costs, or otherwise, that the court considers just, allow the amendment of a pleading to raise a new claim, even though, at the time of the amendment, the court proceeding could not, under section 6, 7 or 21 (of the Limitation act) be commenced with respect to that claim.

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