A person is generally free to leave their estate to whomever they choose, but that freedom will not be upheld where a will is the product of coercion or is made by a person who no longer has the capacity to make informed decisions
The New South Wales Supreme Court’s decision in Waters v Frank; Frank v Waters [2025] NSWSC 1389 is an important reminder of the risks that arise where an elderly or vulnerable person becomes increasingly dependent upon a carer.
The background
Dr Percy Waters died in 2020 at the age of 101.
Over the last 20 years of his life, he signed numerous wills. His earlier wills benefited his two daughters. However, after engaging a paid carer who became increasingly involved in his personal and financial affairs, his later wills progressively benefitted that carer instead. By the final will executed in 2019, the carer was to receive a substantially larger share of the estate than under any previous will.
One of Dr Waters’ daughters challenged the validity of the later wills.
The issues before the Court
The Supreme Court was required to determine whether the later wills were valid.
In particular, the Court considered:
- whether Dr Waters had testamentary capacity when the later wills were executed;
- whether the circumstances surrounding the preparation and execution of the wills were sufficiently suspicious to require close scrutiny;
- whether Dr Waters knew and approved the contents of those wills; and
- whether the wills were procured through undue influence.
Testamentary Capacity
Medical evidence established that Dr Waters suffered from significant cognitive decline after a brain injury and was later affected by dementia. Despite evidence from friends and acquaintances who considered Dr Waters articulate and capable, the Court accepted expert evidence that cognitive impairment may not always be obvious in everyday interactions and concluded that Dr Waters lacked testamentary capacity when the later wills were made. Those wills were therefore held to be invalid.
Suspicious Circumstances
The Court also found numerous suspicious circumstances surrounding the preparation of the later wills. These included:
- the carer’s increasing involvement in Dr Waters’ financial affairs;
- her attendance at solicitor meetings concerning his wills;
- her presence when wills were executed; and
- the steadily increasing benefits she received under successive wills.
Where suspicious circumstances exist, the person seeking to uphold a will bears the burden of satisfying the Court that the deceased knew and approved its contents. The Court was not satisfied that burden had been discharged.
Undue Influence
Undue influence requires more than persuasion or mere encouragement. There must be so much pressure that the deceased’s free will has been overborne.
Direct evidence of coercion is rarely available.
In this case, the Court concluded that by the time the later wills were executed, Dr Waters had effectively reached the point where he regarded himself as having no real choice but to sign the documents prepared for him. Dr Waters had become increasingly dependent upon his carer, who exercised substantial influence over many aspects of his daily life and financial affairs.
The Court therefore found that the later wills had been procured by undue influence.
The outcome
The Court rejected the wills signed by Dr Waters from 2011 onwards. Instead, probate was granted of Dr Waters’ 2009 will.
