Owed a share of a home in someone else’s name, and that person has died? The clock is already running. In Thiessen v. Thiessen Estate, 2026 ONCA 730, released October 13, 2026, Ontario’s Court of Appeal held that a surviving husband’s claim to a 50% interest in his late wife’s home was out of time because he sued more than two years after her death. The two-year limit in the Trustee Act applies to claims against an estate arising from the deceased’s wrongs, even when the claim is about land.
The case in plain terms
Frank and Helena Thiessen married in 2014, each owning a home. Their marriage contract, signed with independent legal advice, recorded a plan to sell both homes and buy a new one together, funded equally. They never found one and lived in Mrs. Thiessen’s house, which stayed in her name alone.
In 2016, Mr. Thiessen sold his house and, on July 13, deposited $223,000 into their joint account. That same day, Mrs. Thiessen moved $100,000, about half her home’s estimated value, from that account to her three children. Mr. Thiessen says that payment secured him a half interest. Title was never changed and the contract was never amended.
Mrs. Thiessen died on January 26, 2022, leaving her husband a conditional life interest in the home. On April 19, 2024, more than two years later, he sued the estate for dependant support and a 50% beneficial interest in the home, based on contract, constructive trust and express trust. The support claim was dismissed as late, and the estate trustees moved to have the property claim declared out of time too.
Citation and where to read it
Citation: Thiessen v. Thiessen Estate, 2026 ONCA 730 (Thorburn J.A.; Madsen and Rahman JJ.A. concurring), released October 13, 2026. Docket COA-25-CV-1078. Appeal from 2025 ONSC 4670.
Read the reasons: Court of Appeal (Lexum) · CanLII
What the Court decided
The motion judge let the land claim proceed under the ten-year period in s. 4 of the Real Property Limitations Act (RPLA), which covers an “action to recover any land.” A unanimous Court of Appeal allowed the estate trustees’ appeal: the claim was statute-barred.
Two years from death, strictly
Under s. 38(3) of the Trustee Act, an action against an estate for a wrong the deceased committed or is liable for “shall not be brought after the expiration of two years from the death of the deceased.” The Court was blunt: “The two-year limitation period under s. 38(3) of the Trustee Act is a strict limit.” The discoverability principle does not apply.
The wrong was the deceased’s, not the executors’
Mr. Thiessen argued, for the first time on appeal, that the executors wronged him. The Court disagreed: any wrong, in contract or equity, arose when Mrs. Thiessen failed to register his interest on title after the $100,000 payment.
Calling it a trust claim does not change the deadline
The only estate claims that escape the two-year limit are narrow exceptions written into the RPLA, such as claims to recover land held on an express trust. An express trust of land must be in writing (see s. 9 of the Statute of Frauds). The couple’s agreement to treat her home as the shared property was oral, so no express trust existed, and equitable trust claims are not an exception. Whether the Trustee Act applies “depends on the nature of the injury, not the way the claim is framed or the remedy sought.”
The specific estate rule beats the general land rule
The two-year limit exists to encourage the timely and final disposition of estates. Where both statutes could apply, the more specific Trustee Act governs: “Absent a specific legislative exception, the limitation period in s. 38 of the Trustee Act governs all claims made against estates arising from wrongs for which the deceased was liable, even where the RPLA may also apply.”
What changed
In Ingram v. Kulynich Estate, 2024 ONCA 678, the Court of Appeal held that equitable trust claims are not excepted from the Trustee Act. The motion judge distinguished Ingram because that claim targeted all estate assets, not just land; the Court of Appeal held Ingram’s reasoning still applies. The land cases Mr. Thiessen relied on did not involve estate claims covered by the Trustee Act. The rule is now clear: “The limitation period for such claims against estates, even claims involving land, is two years after the death of a deceased.”
The Court did not decide the claim’s merits. It found the claim was not frivolous, noted the dispute arose at least partly because title was never transferred, and said this may be an appropriate case for the estate trustees’ costs to be paid out of the estate.
Who this affects
Surviving spouses and partners who paid toward a home in the other’s name only.
Family members and others who believe someone who has died owed them a share of property.
Estate trustees assessing late claims against the estate.
Couples whose plans changed after signing a marriage contract.
Practical takeaways
Count two years from the date of death, not from when you learn of a problem.
Framing will not rescue a late claim. A constructive trust or land label does not unlock the RPLA’s ten years.
Put it in writing and on title. Paying toward a home in your spouse’s name? Register your interest or sign a written agreement, and update your marriage contract when plans change.
Dependant support has its own deadline. Under s. 61 of the Succession Law Reform Act, an application generally must be made within six months of the grant of letters probate or letters of administration.
Estate trustees should act promptly too. Under s. 9(1) of the Estates Administration Act, real property not dealt with within three years of death generally vests in the beneficiaries unless the estate trustee registers a caution.
FAQ
How long do I have to make a claim against an estate in Ontario?
For a claim based on a wrong the deceased committed or is liable for, two years from the date of death (Trustee Act, s. 38(3)), with no discoverability extension. Other estate claims, such as dependant support, have different deadlines.
Does the 10-year limitation period for land apply to claims against an estate?
Not where the claim arises from the deceased’s wrong. The Trustee Act’s two years govern unless a specific exception, such as an express trust of land, fits.
Can I claim part of my late spouse’s house if my name is not on title?
You must start in time. A claim that the deceased broke a promise about a home, or was unjustly enriched by your contributions, generally must be brought within two years of death. Mr. Thiessen’s claim was never heard on its merits because he sued more than two years after his wife died.
What is the deadline to claim dependant support from an estate in Ontario?
Generally six months from the grant of letters probate or letters of administration (Succession Law Reform Act, s. 61), though the court may allow a later application against undistributed estate assets.
Talk to us
Francis Lawyers has served Ottawa since 1974 and specializes in wills and estates, real estate and civil litigation. Whether you are an estate trustee facing a claim, a family member claiming a share of a home, or a couple updating a marriage contract or wills, we will review your documents and deadlines. Disputes go to our civil litigation team. Contact us or call (613) 226-1011.
This article is general information, not legal advice. It summarizes a published Ontario Court of Appeal decision; outcomes depend on your facts and documents, so consult a lawyer about your situation. Published October 20, 2026. Written by the lawyers of Francis Mehr LLP.
