BC Supreme Court Clarifies How to Challenge Undue Influence in Wills

Case Overview

McCrone v. Henry Estate, 2025 BCSC 1076 is a Supreme Court of British Columbia decision involving a dispute over the validity of a will executed by Janet Henry shortly before her death. The case centers on allegations that the Deceased’s last will, which leaves her estate to a male escort, was influenced by undue influence and lacked testamentary capacity. Two main applications were before the court: one seeking to dismiss the plaintiffs’ claim summarily and another to add a party who was the beneficiary of an earlier will.

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Why This Decision is Important

This decision clarifies procedural matters in estate litigation, particularly:

• Whether an action challenging a will under undue influence must be commenced by petition or can proceed by notice of civil claim.
• The threshold for dismissing claims at early stages when allegations of undue influence and testamentary capacity are made.
• The importance of joining all interested parties in estate disputes to ensure fair and complete adjudication.
• The court’s approach to particulars in pleadings when initially unknown facts may later emerge through discovery.

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Case Details

Parties

• Plaintiffs: Jillian and Ross McCrone, niece and nephew of the Deceased, residents of Australia.
• Defendants: Mario Montagano (Executor), Simon Garstin (Beneficiary under the last will), Carol Walkinshaw, Anita McCrone, Maryanne Litzenberger, Simon Garstin; plus Douglas Wilson (beneficiary under an earlier will) sought to be added as a party.

Background

• Janet Henry died in 2021, leaving a Residual Estate worth about $1 million.
• She had two wills:
  • February 2021 Will leaving the estate to Douglas Wilson.
  • August 2021 Will leaving the estate to Simon Garstin, a professional male escort who had provided companionship and sexual services for payment.
• Plaintiffs alleged the August 2021 Will was invalid due to:
  • Lack of testamentary capacity.
  • Undue influence by Garstin.
  • No independent advice was received by the Deceased.
• Plaintiffs filed a Notice of Civil Claim (NOCC) disputing the August 2021 Will’s validity.
• Garstin sought to have the NOCC dismissed summarily; Wilson sought to be added as a party.

Legal Issues

1. Should the claim be struck because it was brought by NOCC instead of petition?
2. Should the claim be dismissed on pleadings (Rule 9-5)?
3. Should the claim be dismissed on summary judgment (Rule 9-6)?
4. Should the NOCC be struck for failure to provide particulars of undue influence?
5. Should Wilson be added as a party?

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Outcome

• The court dismissed the application to strike or dismiss the NOCC.
  The plaintiffs’ action was properly commenced by NOCC; Rule 25-14(4) requiring petition applies only to solemn form probate applications, not claims under s. 52 WESA for undue influence.
• The NOCC discloses a reasonable cause of action and there are triable issues regarding undue influence and testamentary capacity.
  Allegations combined with evidence such as text messages justified proceeding to trial.
• The court ordered plaintiffs to provide particulars of undue influence within two weeks.
• Douglas Wilson was added as a defendant because he has a direct interest as beneficiary under an earlier will.
• Costs were awarded against Garstin on a Scale B basis.

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Key Takeaways

• Challenging a will under undue influence does not require starting proceedings by petition; a Notice of Civil Claim is appropriate.
• Allegations of undue influence and lack of capacity generally require a full trial; summary dismissal is unlikely unless claims are clearly baseless.
• Courts allow flexibility for pleadings when particulars are initially unknown but require them to be provided when facts emerge.
• All persons with a direct interest in a will dispute should be joined as parties to ensure a comprehensive resolution.
• Executors have a duty to prove wills in solemn form if validity is challenged, but failure to do so does not preclude actions by beneficiaries under WESA.
• Text messages and circumstantial evidence can raise questions about undue influence sufficient to go to trial.

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References

https://www.bccourts.ca/jdb-txt/sc/25/10/2025BCSC1076.htm