A recent Supreme Court of New South Wales decision highlights the serious risks that arise when a vulnerable person depends heavily on a carer — and that carer becomes involved in their estate planning. The case, Waters v Frank; Frank v Waters [2025] NSWSC 1389, is an important reminder of how suspicious circumstances, diminished capacity, and undue influence can impact the validity of a will.
Background
Dr Percy Waters passed away in September 2020 at the age of 101. Over his lifetime, he made several wills. His 2009 will left the residue of his estate equally to his two daughters, Laura and Victoria. But from 2011 onwards, a paid carer, Ms Lavinia Williment, began to appear as a beneficiary in his wills — and her share increased with each new version of the Will.
By 2019, her benefit had grown to the largest share in the estate.
That last will (2019) was admitted to probate in 2021. Dr Waters’ daughter, Laura, later challenged the validity of that will and the others made after 2009.
What the Court Examined
Justice Elkaim considered several questions:
- Did Dr Waters have testamentary capacity when making the wills from 2011 onward?
- Were there suspicious circumstances around those wills?
- Was there undue influence — a level of coercion so strong it overbore the free will of the testator?
- If these wills were not valid, which document should be upheld?
Evidence of Vulnerability
The Court reviewed extensive medical evidence. Dr Waters had suffered a serious brain injury in 2006 and later displayed signs of cognitive decline, including mild mixed dementia. An expert psychiatrist concluded that by 2011, he likely lacked the ability to fully appreciate the nature and effect of his estate decisions.
While friends described him as social, articulate and active, the Court accepted expert evidence that dementia is often not obvious to laypeople.
Growing Influence of the Carer
The most concerning evidence related to Ms Williment, the paid carer.
The Court found:
- She obtained access to Dr Waters’ bank accounts within months of being hired.
- She was involved in major financial decisions, including the sale of his long-held family home.
- She received numerous gifts, including cash payments and even a fully funded overseas trip.
- She was present at nearly all solicitor meetings and every will signing from 2011 onward.
- Her share in the will increased repeatedly, while the daughters’ shares decreased.
Justice Elkaim found these circumstances “suspicious” and requiring close scrutiny.
Undue Influence Established
Unlike general pressure or persuasion, undue influence involves coercion — where the testator’s free will is overborne.
Although there was no direct evidence of threats or force, the Court accepted that the cumulative effect of:
- Dr Waters’ vulnerability and cognitive decline
- His dependence on Ms Williment for daily life
- Her involvement in his legal and financial affairs
- Her presence during every will preparation and execution
created a situation where Dr Waters likely felt he had “no choice” but to sign the wills benefiting her.
The Court described him as “emotionally captive” to her influence.
The Outcome
The Court revoked probate of the 2019 will and ruled that Dr Waters’ 2009 will — made before the carer’s involvement — should stand.
All wills from 2011 to 2019 were held invalid due to suspicious circumstances and undue influence.
Why This Case Matters
This judgment is a significant reminder that:
- Carers should not be involved in preparing or witnessing wills.
- Any increase in a carer’s entitlement raises immediate legal red flags.
- Even without direct threats, a testator’s vulnerability can amount to coercion.
- Families should seek early legal advice if concerned about a loved one’s decision-making or the conduct of carers or companions.
If you are dealing with a disputed will or suspect undue influence, our firm can help you navigate your options and protect your rights.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.