Attwood Marshall Lawyers Wills and Estates Lawyer Leigh Steyn looks at a recent NSW Supreme Court case where a care relationship morphed over time into suspicious circumstances, with serious consequences for the estate.
What happened in Waters v Frank; Frank v Waters [2025] NSWSC 1389?
Over eight years, Dr John Waters executed four Wills, each one increasing his carer’s share of his estate – from 5 per cent in 2011, to 21 per cent by 2019 – while his two daughters’ inheritance shrank to just 20 per cent each. After he died in 2020, his daughters challenged the final Will, alleging their father lacked capacity and had been unduly influenced by the carer.
In November 2025, the Supreme Court of New South Wales agreed.
This case is a stark reminder that estate planning isn’t just about what you decide, but also about how those decisions are made, and who is involved when they are.
More importantly, it reinforces the steps that should be taken during the Will drafting process, to save your beneficiaries from the stress, drama and expense of going to court after you pass.
What did the court consider?
In 2006, Dr Percy Lloyd Waters was hit by a car while walking in the Sydney CBD and suffered serious injuries to his head, hip and pelvic areas. He never recovered enough to return to his home in Bathurst and was set up by his daughters in a unit in Sydney’s North Shore.
His daughters hired Lavinia as his carer in March 2008.
In July 2008, Dr Waters settled a negligence claim from the accident for $500,000. He also sold the family home that he became sole owner of after his wife died in March 2003 – for $1.23 million.
His 2009 Will gave the residue of his estate to his two daughters. But between 2011 and 2019, Dr Waters executed four more Wills, increasing Lavinia’s share incrementally, while decreasing the two daughters’ shares.
Dr Waters showed signs of cognitive impairment that was linked back to the accident, and in 2020 just before his death, he was diagnosed with mild mixed-type dementia.
After hearing testimony from medical professionals, caregivers and witnesses about Dr Waters’ dependence on Lavinia, the court found that Lavinia had exploited Dr Waters’ vulnerability by swiftly gaining control of his bank accounts, extracting substantial financial benefits (including a $10,000 payment and a fully-funded four-week trip to England), attending every Will signing and solicitor meetings, all the while progressively increasing her share of his estate with each successive Will.
The court found that Dr Waters lacked testamentary capacity, that Lavinia had exerted undue influence over him, and that suspicious circumstances surrounded each Will from 2011 onwards, notwithstanding these Wills were prepared by the long-standing solicitor of the deceased (the solicitor had his own significant health issues at the time). Probate of his 2019 Will was revoked and his 2009 Will was instead upheld, the last Will made before the troubling pattern began.
The importance of independence
A major reason the later Wills in this case failed was the lack of genuine independence in the Will-making process.
This is an area where we see many families make critical mistakes.
When adult children take their elderly parent to their own lawyer to have a Will drafted, or when a beneficiary drives the Will-maker to appointments, manages their finances, or is present during legal consultations, the independence of that Will can be compromised.
At Attwood Marshall Lawyers, we have strict protocols around this:
- We always interview our clients alone. Even if an adult child has made the appointment, they are not permitted in the room when instructions are being given. Couples can come in together to discuss their estate planning, but when it’s just a parent and adult child, the child stays in the waiting room.
- Carers are also not allowed in consultations. The relationship between carer and client, by its very nature, involves dependency, and that dependency can inadvertently influence decision-making.
This is about protecting the integrity of the Will and ensuring that we are receiving instructions directly from the person making the Will, freely given, without any suggestion of pressure or influence.
Fluctuating capacity and predatory behaviour
One of the fascinating aspects of capacity is that it is not static. A person may have full capacity during an initial consultation, but on the day of signing, they might be flustered, confused, or repeating themselves.
Experienced estate planning lawyers also carry out a thorough fact-finding exercise in every appointment. By the time we get to drafting the Will, we have already talked through the client’s unique circumstances, their assets, relationships, and intentions. Often, this process helps clients realise things they hadn’t thought about before.
We also always ask: “Do you already have a Will? Can we see a copy?” This simple question can reveal a lot, particularly when somebody’s share has jumped dramatically between Wills without any obvious explanation.
In the Waters v Frank case, the court had to consider whether Dr Waters was genuinely exercising his testamentary freedom, or whether his vulnerability and increasing reliance on his carer had affected his decision-making.
Unfortunately, predatory behaviour does exist. It’s not always obvious manipulation or coercion. Sometimes it is more subtle and a gradual wearing down of the Will-maker’s resistance, constant discussions about “fairness” or what they are “owed,” or simply being the only voice the elderly person hears day after day.
Key lessons:
- Who is involved matters as much as what is in the Will: If someone who depends on you (or whom you depend on) is driving you to appointments, managing your finances, present at legal meetings, or benefiting more over time, your Will is far more likely to be challenged, and potentially overturned.
- Gradual changes can be dangerous: Even well-intentioned, incremental changes can look suspicious after the fact. If your estate plan is evolving significantly over time, it is crucial to document your reasons clearly and independently.
- Vulnerability does not trump testamentary freedom, but it raises the bar: Age, illness, or reliance on others does not stop you from making a Will. However, it does mean your Will must be made with extra care, proper legal advice, and strong evidence of capacity and genuine intention.
- A Will that “looks unfair” invites litigation: Once a Will is challenged, every aspect of how it was made comes under microscopic examination. If your Will significantly departs from expectations (for example, by excluding family members or including carers or companions), consider explaining your reasons in a contemporaneous statement prepared with legal advice.
- The cost of getting it wrong is paid by the estate: In cases like Waters v Frank, years of planning can be undone, and the estate bears the legal costs of the resulting litigation. These disputes can consume hundreds of thousands of dollars in legal fees, money that could have gone to beneficiaries.
Having an expert help you finalise your estate planning creates a clear evidence trail showing that you understood what you were signing, were assessed for capacity, and gave your instructions freely and independently. This helps stave off challenges later and protects your estate from dispute, and expense after you are gone.
Attwood Marshall Lawyers – expert estate planning and litigation teams to protect your estate
At Attwood Marshall Lawyers, we have one of the largest Wills and Estates departments in Australia, with experienced lawyers who practice exclusively in this area. Whether you need to prepare a Will, update your estate plan, or have concerns about a family member’s circumstances, our team can provide expert guidance.
Please contact our Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 to book an appointment.
If you are concerned about a loved one’s Will or suspect undue influence, lack of capacity or suspicious circumstances, seek legal advice immediately as time limits apply.
You can book an appointment with our disputes lawyers by contacting Estate Litigation Department Manager, Georgia Trapp, on direct line 0498 499 122, email gtrapp@attwoodmarshall.com.au or call 1800 621 071 any time.
