Elder abuse is a confronting issue, often hidden behind closed doors. With one in six older Australians experiencing some form of abuse, it’s a growing concern for families across Victoria.1 Most perpetrators are not strangers but trusted individuals, often family members.2 Financial abuse, in particular, is one of the most common forms, frequently involving pressure to change a will or misuse a Power of Attorney.4
In response, the Victorian Supreme Court is adopting an increasingly vigilant stance, scrutinising wills and the conduct of those who benefit from them more closely than ever before. Recent landmark cases reveal a clear message: the standard of care for protecting our elderly has been raised, and lawyers are on the frontline.
The Cautionary Tale: When Red Flags Are Ignored
The 2022 case of Re Maddock; Bailey v Maddock serves as a stark warning.6 A 97-year-old war veteran, Mr. Maddock, changed his will three times in 15 months, each time increasing the benefit to his hairdresser. His final will gifted her his home, worth over $1 million, while drastically reducing the inheritance for his wife.6
The Court found Mr. Maddock lacked the mental capacity to make the final will and invalidated it. The judgment was highly critical of the solicitor involved, who failed to properly assess his client’s capacity despite numerous red flags: advanced age, cognitive decline noted on the death certificate, radical changes to the will, and the heavy involvement of the main beneficiary in the will-making process.6 The case underscores that a solicitor’s duty is not just to take instructions, but to actively ensure their client is capable and acting freely.
The New Gold Standard: Technology as a Shield
In stark contrast, the 2023 case of Re Siapantas provides a blueprint for best practice in the digital age.9 The will of a 90-year-old woman, made amidst significant family conflict, was at high risk of being challenged. Her solicitor, anticipating this, took two crucial steps. First, he obtained a capacity assessment from a specialist neuropsychiatrist. Second, he hired a professional videographer to record the entire meeting where the will was explained and signed.9
The video evidence was decisive. The judge was “impressed with the video recording,” noting it revealed the woman was able to “give clear and plausible reasons” for her decisions.9 The footage captured nuances of her understanding and confidence that a written file note never could. It created an almost unchallengeable record of her wishes, protecting her autonomy.
Re Siapantas signals a paradigm shift, establishing video evidence as a powerful tool to “challenge-proof” a will for a vulnerable person.
When Predators Wear a Uniform: A Multi-Agency Response
The fight against elder abuse extends beyond the probate courts. The shocking case of aged care nurse Abha Kumar, who exploited 92-year-old resident Lionel Cox, illustrates the multi-layered institutional response.10 Within days of meeting Mr. Cox, Kumar learned he had no will and owned his home. She purchased a will kit and had him sign a will making her the sole beneficiary of his $1.1 million estate, concealing the contents from the staff members she asked to witness it.11
Justice was delivered through two separate but vital channels. First, the Nursing and Midwifery Board of Australia pursued disciplinary action, resulting in the Victorian Civil and Administrative Tribunal (VCAT) banning Kumar from the profession for her “deeply flawed character”.12 Second, State Trustees Victoria launched a Supreme Court action to revoke the will. In late 2024, the court ordered the grant of probate revoked and the remaining $880,000 of the estate returned to Mr. Cox’s relatives.10 This case highlights the crucial roles of professional regulators like the NMBA and public fiduciaries like State Trustees in holding perpetrators to account and recovering stolen assets.15
The Lawyer’s Role: Your First Line of Defence
These cases confirm that the solicitor is a critical gatekeeper in preventing elder abuse. The Law Council of Australia has published best-practice guidelines that all legal professionals should follow, and which clients should expect.17 Key principles include:
- Interviewing the client alone: A beneficiary should never be present when instructions are taken or a will is signed.
- Asking open-ended questions: To properly assess understanding, a lawyer should ask questions like, “Tell me about your assets,” and “Why have you decided to change your will in this way?”
- Meticulous documentation: A lawyer’s file notes are crucial evidence in any future challenge.
- Proactive steps in high-risk cases: Where a client is elderly, frail, or making significant changes to their will, a diligent lawyer should consider obtaining a specialist medical opinion on capacity or, following the Siapantas precedent, recommend a video recording of the will signing.
The legal landscape in Victoria is evolving to offer stronger protections for our elders. The courts are sending a clear signal of intolerance for exploitation, while also embracing technology that empowers and protects the vulnerable. For families, the message is clear: proactive and careful estate planning with a diligent, informed solicitor is the most powerful tool you have to ensure a loved one’s final wishes are honoured and their legacy is protected.
For a more detailed analysis of these cases and the evolving legal principles in Victorian elder abuse law, you can access the full comprehensive review here: https://drive.google.com/file/d/19UIJjr0oDJOlBtlQ83YWcYccpLhTTLTt/view?usp=sharing