Published
Pardeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2024, and a member of the Law Society of British Columbia.
Updated November 11, 2026: the Wills, Estates and Succession Act (s. 151), the Limitation Act (ss. 6, 8) and the court decisions cited below checked that day.
The starting point: a person can give away their property while alive, even if it leaves less for the estate. A gift made during life usually isn’t part of the estate.
But a gift can be set aside if the person lacked capacity, was under undue influence, the transfer was unconscionably procured, or it was never really a gift (a resulting trust).
Deadline: generally 2 years from when the claim is discovered (Limitation Act s. 6).
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.
When a parent gives money, a house or other property to one child, a new partner or a caregiver before they die, that property normally doesn’t form part of the estate, and the will doesn’t control it. BC law lets people arrange their affairs during their lifetime, even to leave less for a wills variation claim or to avoid probate fees. But a lifetime transfer can be challenged. The main grounds are that the person didn’t have the mental capacity to make the gift, that they were under undue influence, that the person receiving it actively procured an unfair transfer the giver didn’t fully understand, or that the transfer was never meant as a gift at all. If a challenge succeeds, the property can come back into the estate and be shared under the will.
Lawgical Law Corporation, a probate and estate litigation law firm with offices in Surrey, Abbotsford and Vancouver, BC, acts for executors and beneficiaries in disputes over gifts made before death; this guide is by Pardeep S. Grewal.
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Why lifetime gifts are hard to reach
A claim against an estate, including a wills variation claim, can only reach assets in the estate. Property given away during life, put into joint names, or passed by a beneficiary designation goes outside the estate. BC courts accept that a person may arrange their affairs to avoid wills variation claims and probate fees (Mordo v. Nitting, 2006 BCSC 1761). So simply showing that a gift was unfair isn’t enough; there has to be a legal reason to set it aside.
Grounds to challenge a gift made before death
| Ground | What it means | Typical facts |
|---|---|---|
| Lack of capacity | The person didn’t understand the nature and effect of the transfer | Dementia, a recent diagnosis, medical records from around the time |
| Undue influence | The gift wasn’t the person’s own free choice; it was the product of someone else’s domination | A dependent parent, a child or caregiver controlling finances, isolation from family |
| Unconscionable procurement | The recipient actively caused a significant transfer, and can’t show the giver fully understood it | The recipient arranged the lawyer, the paperwork and the meeting |
| Resulting trust (not a gift at all) | A transfer to an adult child for nothing in return is presumed to be held for the parent’s estate unless a gift is proved | A child added to a bank account or house title “to help” |
| Incomplete gift | The steps needed to complete the gift were never taken | A promise, or paperwork never finished |
Undue influence and caregivers
Where the giver and the recipient were in a relationship of influence, the law can presume undue influence, and the recipient must then show the gift was made freely (Geffen v. Goodman Estate, 1991 CanLII 69 (SCC)). For a gift, it is enough to show the dominant relationship; there’s no need to prove the giver was disadvantaged. Courts watch closely where an elderly parent depended on the child or caregiver who received the gift. For wills, WESA s. 52 has its own presumption: see undue influence and wills in BC.
Unconscionable procurement
Where someone receives a significant benefit that they actively caused to happen, the gift will only stand if there is proof the giver fully understood what they were doing and its effect (Sandwell v. Sayers, 2022 BCSC 605, affirmed 2023 BCCA 147). This often comes up where the recipient chose the lawyer, drove the parent to the appointment, and was present when the documents were signed.
Joint accounts and adding a child to title
A transfer for no payment to an adult child is presumed to be held for the parent unless the child proves a gift was intended. This is the most common route for bringing joint accounts and jointly owned homes back into the estate. See joint tenancy vs tenants in common.
Who can bring the claim
A claim to recover property for the estate belongs to the executor or administrator. If the executor won’t act, for example because they received the gift themselves, a beneficiary, intestate successor, or a spouse or child with a wills variation claim can ask the court for leave to sue on behalf of the estate. The court considers whether they tried to get the executor to act, gave notice, are acting in good faith, and whether the claim is necessary or expedient (WESA s. 151). Many beneficiaries don’t realize they need this leave.
The deadline
A claim generally must start within 2 years after it is discovered (Limitation Act, ss. 6, 8). For a resulting trust, time usually runs from when you first learn the trust is being denied; for undue influence, not until the giver was free of the influence. Even within the limit, long delay can defeat a claim, so act promptly.
What the court can order
If the challenge succeeds, the court can order the property returned, impose a trust over it so it is held for the estate, or order the recipient to pay its value. Where most of the assets passed outside the estate, a trust over the specific property, such as the house, is often what makes a claim worthwhile.
Mistakes I have seen
- Waiting until probate is finished to raise the gift, and running into the 2-year limit.
- Suing in your own name without the court’s leave under WESA s. 151.
- Relying on the gift being “unfair”, without evidence of incapacity, influence or the giver’s intention.
- Not getting the parent’s medical records and bank statements early, while they are still available.
Frequently asked questions
Can my parent give everything to one child before they die?
Generally yes, if they had capacity and acted freely. The gift can be challenged only on recognized grounds such as incapacity, undue influence, unconscionable procurement or a resulting trust.
Does a gift before death count in a wills variation claim?
The gifted property itself isn’t part of the estate, but the court may take lifetime transfers into account when deciding what is adequate. See wills variation.
What evidence helps?
Medical records from around the time of the gift, bank statements, the lawyer’s file if one was used, who arranged the transfer, and what the parent said about it to others.
Can I challenge a gift while my parent is still alive?
That is a different situation, often involving the parent’s own capacity and representation. Get advice on the specific facts.
What should I do right now?
Write down the dates of the transfers and when you learned of them, and ask the executor in writing whether they will look into them. Those two steps set the clock and start the WESA s. 151 process if the executor won’t act.
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Related guides: assets moved into joint names · a sibling executor who got everything
Sources
- Wills, Estates and Succession Act (ss. 52, 151), BC Laws
- Limitation Act (ss. 6, 8), BC Laws
- Geffen v. Goodman Estate, 1991 CanLII 69 (SCC); Mordo v. Nitting, 2006 BCSC 1761; Sandwell v. Sayers, 2022 BCSC 605, affirmed 2023 BCCA 147, as discussed in CLE BC, Estate Disputes in British Columbia: A Litigator’s Guide, chapter 13
This article is general information about BC law, not legal advice for your situation.