Finality Over Fairness: Tessaro v. Gora, 2025 ONSC 198, A Cautionary Tale in Will Drafting and Limitation Periods

This article was originally published in Law360 Canada.

The Ontario Superior Court’s decision in Tessaro v. Gora, 2025 ONSC 198, quietly answered a long-standing question among estate planners: what happens when a decades-old drafting error is unexpectedly discovered? In answering this question, Justice Myers not only clarified the legal consequences of such an error but also reiterated the importance of diligent drafting in estate planning.

Overall, this case is a compelling example of how the law’s demand for finality can override fairness, especially in the nuanced world of estates.

Background: The Contradictory Clause

This case centered around the will of Leopold Ryczkowski, drafted in November of 1991 by John Leonard Zigmund Gora, a lawyer. The clause which instigated litigation purported to divide the real estate of the deceased’s estate pursuant to the following terms:

“To such of my sisters living at the time of my death, I give whatever real estate that I own... in equal shares per stirpes.”

The ambiguity in this clause arose because one of Leopold’s sisters — Monica — predeceased him, creating a legal contradiction. The term “per stirpes” typically ensures that a deceased beneficiary’s share passes to their descendants. However, the language of the above clause limited the gift to “sisters living at the time of my death,” effectively excluding Monica’s children from inheriting from his estate.

In December of 2020 — two and a half years after Leopold passed away — Monica’s daughters sued Gora for professional negligence. They argued that the drafting error deprived them of their rightful inheritance. Five days after Monica’s daughters commenced their action, the deceased’s surviving sisters commenced a similar but separate action against Gora.

The Legal Issue: Statutory Interpretation – When Does the Clock Start Ticking?

At the heart of the case was the interpretation of the Limitations Act (the “Act”), particularly the 15-year ultimate limitation period under section 15(2). Generally, section 15 bars claims brought more than 15 years after the act or omission that gave rise to the claim — regardless of when the harm was discovered. As the plaintiff beneficiaries’ causes of action had not been discovered by January 1, 2004, section 24(5) of the Act deems the act or omission to have taken place on January 1, 2004, rather than November 1991, when the will was executed.

The plaintiff beneficiaries contended that the limitation period should begin upon the testator’s death in 2018, when the will took effect and the error became apparent. The plaintiffs relied on section 22 of the Succession Law Reform Act, which states that, generally, wills speak and take effect as if they had been made immediately before the death of the testator. The plaintiffs further relied on section 38 of the Trustee Act, which provides an additional two years post-death to commence claims. Gora, however, argued that the limitation period began on January 1, 2004, pursuant to section 24(5) of the Act.

Justice Myers sided with Gora, ruling that the ultimate limitation period began on January 1, 2004 – the deemed start date under the Act’s transitional provisions — and expired on January 1, 2019. Since the plaintiffs filed their claim in 2020, it was statute-barred. Justice Myers reiterated that a claim can be barred by the ultimate limitation period irrespective of the date of discovery of the plaintiff’s right to sue. Justice Myers further dismissed the argument that section 38 of the Trustee Act applied as the claims brought by the plaintiffs were personal to the beneficiaries and did not belong to the estate.

Implications: Finality Over Fairness

Justice Myers acknowledged the harshness of the outcome. Beneficiaries often cannot discover drafting errors until after the testator’s death — sometimes decades later. Nonetheless, Justice Myers emphasized that limitation statutes are designed to promote finality and certainty, even at the expense of perceived fairness in individual cases.

This decision reinforces that the judiciary’s role is to interpret the law, not to rewrite it. If exceptions to the 15-year ultimate limitation period for estate-related claims are to be made, that responsibility lies with the legislature.

Conclusion: Lessons Learned

Tessaro v. Gora offers valuable lessons for all parties involved in the estate planning and litigation process. For estate planners, it underscores the critical importance of precise and thoughtful drafting — especially when using technical terms like “per stirpes.”

For testators, it is a reminder to regularly review and update estate planning documents to ensure they reflect current intentions and family circumstances.

For litigators, this case is a cautionary tale about the unforgiving nature of limitation periods and the need to carefully assess timelines. And for legislators, it highlights a potential gap in the law — one that may warrant reform to better protect beneficiaries who, through no fault of their own, discover their claims too late, while also providing lawyers with the certainty and closure they need to avoid indefinite exposure to liability.

While the court’s decision may feel harsh, it reflects the law’s prioritization of finality and certainty. In the context of estate law, where consequences often unfold long after documents are signed, Tessaro v. Gora is a reminder that timing is everything.

Sanan (Sunny) Mirza is a member of the Lerners Wills & Estates team. He is available to assist you with your estate matters, including the preparation of wills and powers of attorney.