Can someone really leave their estate to anyone they choose? The recent McCrone v. Henry Estate case raises important questions about testamentary autonomy and undue influence.
McCrone v. Henry Estate, 2025 BCSC 1076 [McCrone] presents an interesting set of facts where a will-maker, following the death of her husband, allegedly engaged the services of various male escorts for the purpose of companionship and sexual services.
The Deceased, Janet Henry, by way of her Last Will and Testament on August 16, 2021, left the bulk of her estate valued at approximately $1 million to Mr. Simon Garstin. The Deceased hired Mr. Garstin as a male escort and obtained his services. Mr. Garstin provided her with sexual and companionship services at prices that were not insignificant. The two first met in person in April 2021, and over a period of six months had several encounters.
The closest living relatives of the Deceased, the children of the Deceased's brother, brought a lawsuit seeking to set aside the gift made to Mr. Garstin in the Deceased's August 2021 will on the basis that:
[17] [words omitted]:
a) Due to COVID-19 restrictions, the Deceased was isolated, lonely and depressed thus making her vulnerable to the influence of others;
b) Mr. Garstin visited the Deceased to provide male companionship and escort services which were paid for by the Deceased; and
c) Due to the nature of his relationship with the Deceased, Mr. Garstin was in a position of dominance and control over the Deceased which raises the presumption of undue influence as that term is meant in s. 52 of WESA.
A presumption of undue influence is established when the nature of the relationship between the parties demonstrates the potential for domination (McCrone, para 52). To rebut the presumption, the testator must be shown to have prepared his or her will of his or her own "full, free and informed thought" (McCrone, para 52).
For his part, Mr. Garstin says that the Deceased initiated and requested all meetings, that she was an independent single woman who enjoyed his company on her terms, that she paid him for his time and companionship, that his financial security, at times, was dependent on the Deceased's payment, and that he was out of the country when the August 2021 will was executed. Furthermore, he denies that he was ever in a position of dominance or control over the Deceased, says the Deceased was not vulnerable to undue influence by anyone, and that it was the Deceased who was in a position of dominance over him and not the other way around.
This decision in McCrone dealt predominantly with procedural challenges to the plaintiffs' lawsuit. One aspect of the procedural challenges raised by Mr. Garstin was whether the claim that the Deceased was subjected to undue influence by Mr. Garstin in the preparation of the August 2021 will was bound to fail. The Court made comments concerning the possibility that undue influence could be established. At para 54 of McCrone, the Court referred to the drawing of inferences based on circumstantial evidence, such as the approximate 54-year difference in the ages between Mr. Garstin and the Deceased, and the text messages between them that may suggest Mr. Garstin may have had a significant influence over the Deceased. At para 55 of McCrone, the Court commented that the text messages in evidence arguably suggest that the Deceased and Mr. Garstin had more than a casual sexual relationship and that the Deceased may have been influenced by him. The Court determined that the plaintiffs met the threshold in showing that there were issues that required a trial to determine whether the Deceased was subjected to undue influence prior to preparing the August 2021 will or whether there was a relationship of dominance by Mr. Garstin over the Deceased.
While the Court made no findings of fact as it concerns the alleged undue influence as those issues will need to be determined on the merits after fulsome evidence and cross-examination, the comments made by the Court nevertheless raise questions regarding an individual's ability to exercise their free-will, form relationships with a non-relative, and then subsequently decide to make a significant gift from their estate to that person.
Conclusion
The death of a loved one can raise many questions and concerns. If you have concerns, it is best to consult with a lawyer who can provide advice on your legal rights and options.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
