When carers are involved: Estate Planning reminders from Waters v Frank

• Case: Waters v Frank; Frank v Waters [2025] NSWSC 1389

• Court: Supreme Court of New South Wales

• Judge: Elkaim AJ

• Decision date: 28 November 2025

• Decision: 2019 will revoked; probate granted in solemn form of 2009 will

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Probate undue influence

Waters v Frank; Frank v Waters [2025] NSWSC 1389 serves as a timely caution for estate planning practitioners regarding the risks that arise when acting for vulnerable clients who are significantly reliant on their carers. The Supreme Court of NSW revoked probate of the Deceased’s most recent 2019 will, set aside four other wills for probate undue influence, and granted probate in solemn form of a 2009 will. While the proceedings also addressed issues of testamentary capacity and suspicious circumstances, the decision is particularly notable for its treatment of probate undue influence arising from a circumstantial pattern of conduct, rather than a single identifiable act of coercion at the time of execution.

A pattern of escalating bequests

Dr Percy Lloyd Waters (Deceased) died in September 2020 aged 101; his wife having predeceased him. He was survived by two daughters, one of whom was the plaintiff in the proceedings.

Over the final two decades of his life, the Deceased executed seven wills, the earliest in 1999 and the last some four weeks prior to his death. Earlier wills, including a 2009 will, broadly benefitted his two daughters. In contrast, the later wills, particularly the four executed in the eight years preceding his death, provided an increasing benefit to the carer, rising from 5% to 21% of the residue.

Inferring coercion from conduct

In Boyce v Bunce [2015] NSWSC 1924 Lindsay J reaffirmed: “…in probate proceedings, an allegation of undue influence requires proof of facts tantamount to coercion…”

In Waters v Frank, the Court concluded that the Deceased had reached a point where “...he would have regarded himself as having no choice but to execute the will.” That conclusion was drawn from the cumulative effect of the following factors:

• The Deceased’s susceptibility and vulnerability;

• The carer’s control of the Deceased’s bank accounts;

• The nature and extent of the benefits received by the carer;

• The carer’s presence at meetings regarding the wills (including signing the wills); and

• The increasing benefit to the carer in each successive will.

Taken together, these factors supported an inference that the carer exerted coercive influence over the Deceased’s testamentary decision-making. The pressure applied was found to be “equivalent, in effect, to force” the Deceased, such that the Deceased was “overborne by the circumstances” created by the carer.

Key takeaways

This decision reinforces the stringent threshold for establishing probate undue influence, whilst demonstrating that coercion may be inferred from a sustained pattern of conduct rather than a single overt act.

For practitioners, this decision is a timely reminder of fundamental estate-planning safeguards: meeting the testator alone, avoiding leading questions, identifying and documenting vulnerabilities, and maintaining detailed file notes explaining the rationale for testamentary changes, particularly where non-family beneficiaries are involved and benefits increase over time.

Where a matter involves multiple wills or a prolific will-maker, comparative analysis of successive instruments can be invaluable in identifying emerging patterns – our new Will Comparison prompt PT-NSW-EST-010 can assist in generating a table of key provisions for your consideration.