In McCrone v. Henry Estate, 2025 BCSC 1076, the British Columbia Supreme Court declined to summarily dismiss a will challenge brought by the niece and nephew of the deceased, Janet Henry. The plaintiffs alleged that a substantial gift made to a younger male escort in Janet’s final will was the product of undue influence. The Court confirmed that such a claim could proceed under section 52 of the Wills, Estates and Succession Act (“WESA”) by way of notice of civil claim and did not require initiation by petition. The Court also allowed the residual beneficiary under a prior will to be added as a party to the litigation.

The plaintiffs, Jillian and Ross McCrone, were the niece and nephew of the deceased, Janet Henry, and her closest living relatives. Janet passed away in November 2021 at the age of 84, leaving behind a will dated August 16, 2021, in which she named Simon Garstin, a man in his early thirties who had provided her with paid companionship and sexual services, as the sole residual beneficiary of her $1 million estate. This will replaced an earlier will dated February 18, 2021, in which the same gift had been made to Mr. Douglas Wilson, a long-time friend of the deceased.

The plaintiffs challenged the validity of the August 2021 Will on the grounds that Janet lacked testamentary capacity, did not receive independent legal advice, and was unduly influenced by Mr. Garstin. They commenced their action by notice of civil claim (NOCC), seeking to set aside the residual gift to Mr. Garstin. Mr. Garstin brought an application (Application #1) to strike or dismiss the claim, arguing it should have been commenced by petition under Rule 25-14(4) of the Supreme Court Civil Rules. Mr. Wilson brought a separate application (Application #2) seeking to be added as a party, on the basis that he stood to benefit under the earlier will if the August 2021 Will was invalidated.

Justice Weatherill dismissed Application #1. The Court held that while Rule 25-14(4) does require that an application to prove a will in solemn form be commenced by petition in the absence of an existing proceeding, that rule did not apply here. The plaintiffs were not seeking to have the will proved in solemn form, but rather to challenge the validity of a specific gift under s. 52 of the Wills, Estates and Succession Act (WESA), which permits an action to be brought where a person was in a position of dominance or dependence over the testator and allegedly exerted undue influence. The Court found that WESA governs in cases of conflict with procedural rules and that commencing the proceeding by NOCC was not improper. Even if it had been, Rule 22-7 protects proceedings from being set aside for mere procedural irregularities. Justice Weatherill also observed that no steps had yet been taken by the executor to prove the will in solemn form, and that if the NOCC were struck, the executor would likely have to commence a fresh proceeding to do so—resulting in no practical benefit to anyone.

With respect to the summary dismissal arguments under Rules 9-5 and 9-6, the Court found that the claim disclosed a reasonable cause of action and that genuine issues for trial were present. The plaintiffs had alleged facts which, if proven, could trigger the presumption of undue influence under s. 52 of WESA. These included the substantial age difference between the deceased and Mr. Garstin, the nature of their paid companionship relationship, and documentary evidence (such as text messages) that had since come to light during the discovery process. Although the plaintiffs’ initial pleadings lacked full particulars, the Court found that Rule 3-7(20) permitted them to provide additional details as they became known. Justice Weatherill declined to strike the claim for want of particulars but ordered the plaintiffs to deliver them within two weeks.

Application #2 was granted. Mr. Wilson was added as a defendant on the basis that he had a direct interest in the outcome of the proceeding and ought to have been joined from the outset. Although he became aware of the litigation only in 2024, and only recently sought to be added as a party, the Court accepted his explanation for the delay and found that it would be just and convenient to add him now. The Court also directed him to file a response and counterclaim in order to avoid a multiplicity of proceedings.

In summary, the Court dismissed Mr. Garstin’s application to strike or summarily dismiss the action and allowed Mr. Wilson’s application to be added as a party. The matter is now set to proceed to trial beginning June 30, 2025.

The case serves as a reminder that unconventional or transactional personal relationships do not immunize gifts from scrutiny. The nature of the relationship may, in fact, be central to assessing whether the testator’s autonomy was compromised. Litigants challenging suspicious will changes—particularly where there is a significant age disparity, emotional dependence, or payment for companionship—will be afforded a full hearing on the merits, and courts will be slow to dispose of such cases on technical grounds.

Bobila Walker Law represents clients in high-conflict estate disputes, including will challenges, undue influence claims, and capacity litigation across Ontario. Contact us at 416-847-1859.