Can I claim against a seller’s estate after the seller dies?

When a seller dies after closing, the buyer’s question is who answers for what the seller promised or did. The estate is where a claim is directed, with the executor or administrator acting for it. This page uses Ontario’s statutes as the worked example. Other provinces run their own estate and limitation regimes, so check the one that applies to your deal. It is about the seller’s death, not a partner’s, which is covered in a separate page.

Who answers for the seller after death

Ontario’s estates guide lists an estate trustee’s responsibilities as including winding up the affairs of the deceased and paying taxes, bills and any other debts. The Trustee Act adds a specific rule. Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator (s. 38(2)). Whether your complaint about a business sale fits that wording is a question for a lawyer.

The time limits

An action under section 38 shall not be brought after two years from the death of the deceased (s. 38(3)). A claim that does not fall under that section may instead be governed by the Limitations Act, 2002, which applies to claims pursued in court proceedings, subject to the exclusions in its s. 2. It includes a general period ending on the second anniversary of the day the claim was discovered (s. 4) and, with exceptions, a 15-year outer limit (s. 15(2)). Do not assume the longer date applies: a lawyer should work out which period governs.

If the estate has no representative yet

Under the Ontario Rules of Civil Procedure, where it is sought to commence or continue a proceeding against the estate of a deceased person who has no executor or administrator, the court on motion may appoint a litigation administrator to represent the estate for that proceeding (rule 9.02(1)). Separately, check the sale agreement and any escrow or holdback terms: ask who holds the funds and what the documents say if the seller dies.