Estate Planning, Vulnerability And The Hidden Risks Families Often Miss. Lessons From Waters v Frank

Australia's population is ageing and people are living longer than ever before. While increased longevity is a positive development, it also brings legal and practical challenges that are often underestimated, particularly when it comes to estate planning.

As people age, there is often a prolonged period during which physical frailty, subtle cognitive decline, or increasing reliance on others develops gradually. Vulnerability does not always present in obvious ways. In my experience as a wills and estates practitioner, particularly in contested estates, it is during these later stages of life that estate planning requires the greatest care.

A recent decision of the Supreme Court of New South Wales, Waters v Frank; Frank v Waters [2025] NSWSC 1389, provides a clear and sobering illustration of these risks.

A brief overview of the case

The case concerned the estate of Dr Percy Waters, who lived to the age of 101. Over the final years of his life, Dr Waters made a series of wills.

Under a will made in 2009, his estate was to be shared equally between his two daughters. From 2011 onwards, however, later wills progressively reduced the daughters' entitlements. At the same time, a paid carer who had become closely involved in Dr Waters' day-to-day life received an increasing share of the estate. By the final will made in 2019, the carer was the largest beneficiary.

Following Dr Waters' death, the 2019 will was admitted to probate. One of his daughters later challenged that will, and the earlier wills made after 2009, alleging lack of knowledge and approval, suspicious circumstances and undue influence.

After lengthy court proceedings, the Court revoked probate of the later will and ordered that probate be granted of the 2009 will instead.

Why the Court intervened

This was not a case involving a sudden or dramatic change in testamentary intentions. Rather, the Court was concerned with a pattern of gradual change occurring as the deceased aged and became increasingly dependent on a single individual.

The Court found that:

• there were significant suspicious circumstances surrounding the preparation and execution of the later wills;
• those seeking to uphold the later wills failed to establish that the deceased had unfettered knowledge and approval of their contents; and
• the deceased was subject to probate undue influence, arising from his vulnerability and dependence.

Although medical evidence of cognitive decline was relevant, the Court made clear that the decisive factors were the surrounding circumstances and the gradual erosion of the deceased's autonomy over time.

Why this matters in an ageing community

Cases like Waters v Frank are becoming increasingly common as people live longer.

Longevity often brings extended reliance on carers or companions, subtle cognitive changes rather than obvious incapacity, and shrinking social or family networks. A person may remain articulate, socially appropriate and outwardly capable, yet still struggle to properly weigh competing claims on their estate or to resist pressure from those they depend upon.

Vulnerability does not always announce itself clearly, and it rarely appears all at once. This is why careful estate planning is so important.

Reminders from Waters v Frank

• Estate planning is a process, not a one-off document:
  Having a will is essential, but how a will is made and reviewed is just as important as its contents. As circumstances change with age, estate plans should be revisited carefully and with appropriate safeguards.
• Vulnerability does not require a diagnosis:
  A formal diagnosis of dementia is not required for vulnerability to exist. Emotional dependence, isolation and subtle cognitive decline can significantly affect decision-making long before incapacity becomes obvious.
• Gradual changes deserve close attention:
  One of the key lessons from this case is that risk does not only arise when a will changes dramatically overnight. Incremental changes, particularly where they consistently benefit the same person, warrant careful scrutiny.
• Independent legal advice protects intentions:
  Independent legal advice is most effective when estate planning is treated as an ongoing professional relationship rather than a single transaction. A proper process includes seeing the client alone, actively assessing capacity and vulnerability, clearly explaining and documenting changes from previous wills, and carefully recording instructions. Where a client returns to the same lawyer over time, that lawyer is well placed to observe gradual or subtle changes in cognition, demeanor, or ability to give instructions. This continuity allows appropriate safeguards to be implemented and helps ensure that the will ultimately reflects the genuine wishes of a person with the requisite soundness of mind to make a valid will. These measures are not mere formalities; they are essential protections of testamentary intention.

A message for families

Estate disputes are often emotionally and financially devastating, and many are preventable.

If you have an ageing family member who is becoming increasingly dependent on others, making unexpected changes to their estate plans, or relying heavily on one person for decision-making, encouraging them to obtain independent legal advice is not interference; it is protection.

Final thoughts

Waters v Frank is a reminder that as people live longer, the importance of careful and considered estate planning only increases.

Good estate planning protects not only assets, but autonomy, dignity and family relationships. With the right advice at the right time, many of the risks highlighted by this case can be identified and managed before they lead to dispute.

At Kalus Kenny Intelex, we guide our clients through the process with sensitivity, clarity and expertise.

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.