Estate planning decisions involving an older person are often made with the involvement of family members, carers or other trusted people and may seem entirely unremarkable at the time. Property may be transferred to a family member, a Will changed to recognise someone who has taken on a greater caring role or a Power of Attorney put in place to help manage financial affairs. In most cases, those decisions genuinely reflect the older person’s wishes, but there are circumstances where pressure, manipulation or financial exploitation sits behind what otherwise appears to be a legitimate arrangement.
Elder abuse in the context of estate planning can directly affect an older person’s legal documents, assets and personal arrangements, making the way these are documented particularly important. The National Elder Abuse Prevalence Study, commissioned by the Attorney-General’s Department, found that 14 per cent of older Australians with a valid Will experienced elder abuse, compared with 20 per cent of those without one. A similar pattern was identified among those who had a Power of Attorney in place.
Family agreements showed a different result, with elder abuse reported by 21 per cent of older people with an agreement, compared with 15 per cent of those without one. While these figures do not prove that any particular arrangement causes or prevents abuse, they reinforce the importance of careful estate planning, particularly where significant financial or personal decisions involve another person.
When influence, capacity and coercion become legal issues
Several legal concepts can become relevant when concerns about elder abuse arise in estate planning.
Undue influence may arise where a person in a position of trust or authority exerts pressure that affects the person’s ability to make an independent decision. Capacity looks at a different part of the same issue, focusing on whether the person understood the nature and consequences of what they were doing at the time. Concerns may also arise where money or property has been misused or where physical, emotional or psychological pressure has influenced the person’s choices.
When these issues are established, the legal consequences can be significant. Depending on the circumstances, a Court may set aside a document or transaction, revoke a Power of Attorney or allow civil proceedings to recover assets that were improperly transferred.
Gifts made in life are treated differently to gifts made in a will
A significant distinction arises between gifts or transfers made during a person’s lifetime and gifts made through a Will.
Where an older or vulnerable person transfers money or property during their lifetime to someone they depend on or trust, the law may presume that undue influence was involved. In those circumstances, the recipient may be required to show that the gift was made freely, with a proper understanding of what was being given away and the consequences of doing so.
That issue arose in McFarlane v McFarlane [2021] VSC 197, where an elderly woman with a documented cognitive impairment transferred her home to her adult son while he was acting as her live-in carer. The Victorian Supreme Court set the transfer aside, finding that it had been procured by undue influence and that the son had failed to show the gift was her free, independent and well-understood act.
A Will is treated differently as the person challenging it must prove that the Will-maker was actually coerced and that their ability to make a free decision was overborne. It is not enough to show that another person was persuasive or had a strong influence over them, which makes this type of challenge considerably more difficult.
That higher threshold was considered in Waters v Frank; Frank v Waters [2025] NSWSC 1389, where Dr Percy Waters made a series of Wills between 2009 and 2019 that progressively increased the share left to his paid carer and reduced the share left to his daughters. The NSW Supreme Court found that coercive influence had been exercised, revoked probate of the 2019 Will and reinstated the 2009 Will.
Capacity is a separate issue again. However, a diagnosis of dementia does not automatically invalidate a Will. Under the longstanding test in Banks v Goodfellow (1870) LR 5 QB 549, the question is whether the Will-maker understood what it meant to make a Will, the extent of the assets they were dealing with and who might reasonably expect to benefit from their estate.
Acting quickly and understanding the cost of getting it wrong
Where there are concerns that a Will may have been made improperly, acting early can make a significant difference. One option is to lodge a caveat with the Supreme Court of NSW, which temporarily prevents probate from being granted while the concerns are investigated. A caveat remains in force for six months and must be lodged before probate is granted.
There is no fixed statutory deadline for challenging the validity of a Will on the grounds of undue influence or lack of capacity. This differs from a family provision claim, which generally needs to be commenced within 12 months of the date of death under section 58 of the Succession Act 2006 (NSW). Even without a fixed deadline, delaying a challenge can make matters considerably more difficult once probate has been granted and estate assets have been distributed.
There can also be a significant financial risk in pursuing an unsuccessful undue influence claim. Legal costs in NSW Supreme Court proceedings can exceed $100,000 and an unsuccessful challenger may be ordered to contribute to the other party’s costs as well as meeting their own.
For that reason, the records made when a Will is prepared can become extremely important. Notes from an independent solicitor may show that the client attended alone, understood what they were doing and clearly expressed their own wishes. In some cases, that record can become a deciding factor when the Court is asked to determine whether the Will genuinely reflected the person’s intentions.
A Power of Attorney can also be reviewed if questions arise about the person’s capacity or the way the attorney is exercising their authority. The person who made the appointment can revoke it themselves while they still have the capacity to make that decision. Otherwise, the matter may need to be taken to the NSW Civil and Administrative Tribunal for review.
Protecting wishes and avoiding disputes
The Central Coast has one of the largest older populations in regional NSW, which makes issues around estate planning, independence and trusted support especially relevant within our local community. Many older people live independently and may rely on family members, carers or other trusted people to help manage their affairs, but the risks discussed throughout this article are not limited to the Central Coast.
Getting advice early can help ensure a person’s wishes are clearly documented and properly reflected in their estate planning, while also reducing the risk of disputes later. At Aubrey Brown Lawyers, our Wills and Estates team can provide guidance where concerns have been raised about the decisions or arrangements being put in place.
