Published
Sundeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2018, and a member of the Law Society of British Columbia.
Updated November 11, 2026: the Wills, Estates and Succession Act (ss. 60, 95) and the court decisions cited below checked that day.
Wills variation only reaches the estate. Property held in true joint tenancy, in an alter ego trust, or with a named beneficiary passes outside it.
But it still counts. The court can take those assets into account in deciding what’s fair from the estate.
Other claims may reach them: resulting trust, capacity or undue influence over the transfer, or unjust enrichment.
The lawyers who handle these estate files
About our lawyers
Sundeep S. Grewal founded Lawgical Law Corporation and practises probate, estate litigation and immigration. He has represented clients in the Provincial and Supreme Courts of British Columbia, from chambers applications to contested trials.
Pardeep S. Grewal is a probate, estates and immigration lawyer known for clear communication and practical strategy.
Sometimes the will looks fair, or the estate is surprisingly small, because before death the parent put the house into joint names with one child, added a child to bank accounts, named one person as beneficiary of RRSPs and insurance, or moved assets into an alter ego trust. A BC wills variation claim can only vary what passes under the will, so property that legitimately passed outside the estate can’t be divided directly. But that isn’t the end of it. The court can still consider those assets when deciding what’s adequate and fair from what is in the estate. And many of these transfers can be challenged on their own: where a parent added an adult child to title or an account without payment, the law generally presumes the child holds it for the estate unless they prove a gift was intended. Transfers made when the parent lacked capacity, or under undue influence, can also be set aside. Courts have also taken lifetime gifts into account where they reflected a preference for sons over daughters.
Lawgical Law Corporation, a probate and estate litigation law firm with offices in Surrey, Abbotsford and Vancouver, BC, traces assets that passed outside an estate and challenges transfers made before death; this guide is by Sundeep S. Grewal.
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What a wills variation claim can and can’t reach
| Asset | Part of the estate? | Other route |
|---|---|---|
| House or account in true joint tenancy | No, it passes to the survivor | Resulting trust if it was a gratuitous transfer to an adult child; capacity or undue influence |
| RRSP, RRIF, TFSA or life insurance with a named beneficiary | No (WESA s. 95) | Challenge the designation’s validity; the court can still consider it |
| Alter ego or similar trust set up during life | No | Challenge the trust itself, for example on capacity |
| Outright gifts during life | No | Capacity, undue influence; the court considers them in fixing shares |
| Property in the will-maker’s sole name | Yes | Directly subject to wills variation |
How the court uses assets outside the estate
Even though the court can’t divide them, it can take them into account in deciding what a judicious parent would have done. If one child already received the house by joint tenancy, the court may give the other children more of what’s in the estate. Where lifetime gifts to a son reflected a preference for sons over daughters, a court gave a daughter the bulk of an estate the will had divided equally (Lam v. Law Estate, 2024 BCSC 1561).
Limits
- A parent can lawfully reduce an adult child’s wills variation claim by making valid transfers during life.
- An adult child’s wills variation claim arises only at death, so the Fraudulent Conveyance Act generally can’t be used to undo those transfers; courts reached a similar result for a spouse.
- A trust set up by attorneys under a power of attorney was upheld where it mirrored the will and wasn’t aimed at defeating a claim, which left a spouse with no estate to claim against (Easingwood v. Cockroft, 2013 BCCA 182).
The claims that can reach these assets
- Resulting trust: a gratuitous transfer to an adult child is presumed to be held for the parent’s estate unless the child proves a gift. See money given away before death and joint tenancy.
- Capacity or undue influence over the transfer or designation. See undue influence.
- Beneficiary designations: see designation disputes.
A wills variation claimant can sometimes ask, within the claim, for a declaration on whether particular assets belong to the estate.
Mistakes I have seen
- Looking only at the will and the probate inventory, which leave out joint and designated assets.
- Assuming “it was in joint names, so it’s his” without checking how and why it was added.
- Missing a transfer made while the parent had dementia.
Frequently asked questions
Dad added my brother to the house title years ago. Is it my brother’s now?
Not necessarily. If it was a gratuitous transfer to an adult child, your brother may have to show it was meant as a gift; otherwise he may hold it for the estate.
How do I find out what passed outside the estate?
Land title searches, bank records obtained through the executor or the court, and the probate disclosure are starting points.
Does the 180-day deadline apply to these claims?
The wills variation claim has the 180-day limit. Resulting trust and validity claims have their own time limits, so act promptly.
What should I do right now?
Search the land title for the house, note any accounts you know were joint, and check the grant date.
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Sources
- Wills, Estates and Succession Act (ss. 60, 95), BC Laws
- Lam v. Law Estate, 2024 BCSC 1561; Hossay v. Newman, 1998 CanLII 15139 (BC SC); Mordo v. Nitting, 2006 BCSC 765; Mawdsley v. Meshen, 2012 BCCA 91; Easingwood v. Cockroft, 2013 BCCA 182; Viberg v. Viberg, 2009 BCSC 27; Sharma v. Sharma, 2018 BCSC 1262, as discussed in CLE BC, Estate Disputes in British Columbia: A Litigator’s Guide, §10.4
This article is general information about BC law, not legal advice for your situation.