Here’s the harder truth: the second lawyer may carry more risk than they realize. And the limitation clock against them may start ticking later than expected.
A Familiar Scenario in Estate Files
A beneficiary, frustrated by an executor’s conduct or seeking clarity about their entitlements, retains a lawyer—let’s call them Lawyer #1. Lawyer #1 encourages a procedural objection, like a Notice of Objection or an application for interpretive relief, with no real consideration of the no-contest clause lurking in the will. The lawyer quietly exits the file.
Enter Lawyer #2, who picks up the file, reviews some documents, files some updates, writes some letters, and continues litigation strategy without revisiting the core question: Did we already pull the pin? Then, suddenly, the estate trustee enforces the clause. The beneficiary is out. The question becomes: Who’s liable, and is it too late to sue?
The Legal Test: When Does the Limitation Period Start?
Ontario’s Limitations Act, 2002[1] sets a two-year limitation period, beginning when the plaintiff knew or ought to have known:
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- That damage occurred;
- That it was caused by an act or omission;
- That the act or omission was that of the person being sued;
- That a legal proceeding would be appropriate.
The Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31[2]has now definitively ruled:
You don’t need certainty. You need enough material facts to draw a plausible inference of liability. In other words, the clock starts when a reasonable person in the plaintiff’s shoes would suspect something has gone wrong, and would suspect someone is to blame.
Applying the Logic to Lawyer #2
Let’s presume that Lawyer #1 was negligent for failing to flag the risk of triggering a no-contest clause. So far, so good.
But what about Lawyer #2—the one who took over the file after the triggering event but before the clause was enforced? Could they be liable too?
The answer is: yes, if they failed to review the will, spot the clause, or advise the client about their exposure.
And when would the limitation period begin against them?
This is where the law gets nuanced—and dangerous.
The “Second Lawyer” Dilemma: Two Competing Clocks
There are two viable arguments here:
⚖️ Argument 1: The Clock Starts When the Clause is Enforced
If Lawyer #2’s failure was independent, meaning they should have reassessed the file, reviewed the clause, and advised on exposure but didn’t, then the client may not discover that omission until the clause is actually enforced. That’s when the client finally connects the dots:
“Wait—my new lawyer never warned me I was at risk of losing everything.”
That’s enough, under Grant Thornton, to start the clock.
⚖️ Argument 2: The Clock Started Earlier
But a clever defence will argue:
“The beneficiary knew (or should have known) something was wrong much earlier. The loss was baked in when the first lawyer acted. The second lawyer didn’t cause new damage.”
In this version, the two-year clock started before the clause was enforced—possibly from the moment Lawyer #2 took no corrective action.
Which argument wins depends on what the client knew, what the lawyer did or didn’t do, and whether the lawyer’s omissions delayed the realization of the harm.
What Courts Will Look At
A court analyzing the claim against the second lawyer will focus on:
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- Did the second lawyer review the will and spot the clause?
- Did they advise the client about the prior objection’s potential consequences?
- Did they continue the challenge without qualification?
- Did they take any steps that may have aggravated the loss or solidified the enforcement?
If they did nothing—or worse, reassured the client they were fine—then they’ve likely created their own exposure, with a limitation period running from the date of disinheritance, not before.
Why It Matters in Real Life
Clients don’t track legal missteps. They rely on counsel. If a second lawyer steps in and fails to clean up a risk created by the first, they may not only inherit the file, but also inherit the liability. Worse, they may reopen the limitation window—because their negligence is separately discoverable.
This isn’t just theory. In files where wills are challenged, objections are filed, or applications are brought, no-contest clauses are often overlooked. Many lawyers treat them as toothless or boilerplate. But when enforced, they wipe out the entire inheritance and leave the client scrambling to sue whoever gave the green light.
The Mediation Angle
As a mediator, I’ve seen the fallout firsthand. By the time I’m involved, the beneficiary is already disinherited. Two or three law firms may have touched the file. The estate trustee is holding firm. The beneficiary is turning on their own counsel, and everyone is pointing fingers. And all of it is colored by the real threat of missed limitation periods.
Mediation in this context isn’t just a procedural checkpoint—it’s often the only realistic resolution. Litigation against former counsel is time-consuming, reputationally damaging, and expensive. And if there are multiple lawyers in the chain, mediation allows for shared responsibility and practical closure.
Final Thought: Your Second Lawyer Better Be Your Best
In estate litigation, as in life, it’s not always the first mistake that gets you—it’s the failure to fix it. A second lawyer has a duty to independently assess risk. That means reading the will. That means explaining exposure. And that means pulling the pin on the problem before the client finds out the hard way.
Because once the no-contest clause is enforced, and the clock starts ticking, the bang you hear may not just be the client’s inheritance disappearing. It may be the sound of a fresh negligence claim walking in your door.