The Facts

Daughter suspected of trying to get larger share of father's estate

A recent case in the NSW Supreme Court concerned the estate of a father with three adult children.

The relationship between two of the children on the one hand, and one of the children on the other hand was not a friendly one.

Siblings R and L believed that their father desired to leave his estate to the three siblings in equal shares. They were concerned that their sister Y was taking advantage of their father to get a larger share of his estate.

Siblings argue about responsibility for care of elderly parents and father's will goes missing

In January 2017, the three siblings visited their mother's nursing home with their father. During the visit, R and L had a "scene" with Y, who was angry that R and L had left the care of their elderly parents to her alone.

R and L then drove their father home and discussed with him the events at the nursing home. During this discussion, they realised that their father's will, which they thought had left his estate equally to the three children, was not in the bedside cabinet where it should have been.

Rival siblings arrange for father to make successive replacement wills

Within days, R and L arranged for their father to sign a replacement will, leaving everything equally to the three children.

However, on 15 March the father signed another will, which left the family home to Y and funds in a bank account to R and L.

Y sent R a text message, advising him that the new will had been signed. The text message exchange was impolite and largely concerned the role that the siblings should or would be playing in their father's ongoing care.

Sister claims to have moved in with her father

Y claimed that she had moved into the family home to care for their father at about the same time, in March 2017.

However, it was disputed whether she moved into the home in March or some months later.

First daughter secretly records conversation with father to prove second daughter not caring for father as claimed

On 29 April, L used her mobile phone to record a conversation with her father without his knowledge or consent.

She claimed she made the recording to prove that her sister Y wasn't with her father every day, as she claimed.

In the conversation, L asked her father questions such as when did her sister Y last come to visit, when was Y planning to move in with her father and to what extent was the father paying Y's bills.

Brother seeks to tender secret recording in making family provision claim on estate

After the father's death, his son R applied to the NSW Supreme Court for a family provision order out of his father's estate for his maintenance and advancement in life.

As evidence in the proceedings, R tendered the secret recording made by his sister L.

His sister Y, who was both a beneficiary under her father's will and his executor, objected to this, arguing that the evidence was illegally obtained and therefore inadmissible.

It was up to the court to decide whether to admit the recording into evidence.

case a - The case for the brother

case b - The case for the sister (executor)

  • It is not a crime to record a conversation if a party to the conversation consents and the recording is reasonably necessary to protect that person's lawful interests. My sister, L, consented to the use of the mobile phone to record the conversation with my father, and it was necessary to protect her lawful interest against our sister Y, who was scheming to get a greater share of the estate.
  • L and I are confident that Y was responsible for the disappearance of our father's original will and have good reason to believe that Y was not as involved in the care of our father as she claimed to be.
  • L had a lawful interest in protecting her credibility should this dispute with our sister end up in court, which it has. L needed proof of the true position, that Y was not as involved in the care of our father as she claimed to be.
  • It was reasonably necessary to keep the listening device secret from our father. If L had told him about it, he may not have spoken freely to avoid becoming involved in a family brawl. By secretly recording the conversation, L ensured that our father's comments would be considered accurate.
  • It was also preferable to make a secret recording, rather than a contemporaneous written note, because Y would have challenged the veracity of a note written by either L or my father.
  • In any event, even if the making of the recording was illegal, the court has discretion to admit the recording as evidence anyway. This is a clear case where that discretion would apply. The gravity of the secret recording was relatively mild.
  • My father is now deceased, so using the recording won't embarrass him or breach his privacy. Further, in family provision claims the court typically has great regard for evidence of a deceased person. The recording would be of assistance to the court to hear what our father, the deceased, actually said.
  • Since the making of the recording was not illegal and any alleged impropriety was mild, the court should admit the recording into evidence.
  • When my sister L made the secret recording, neither she, nor my brother, nor I were actively contemplating litigation. Rather, L made the recording thinking that if litigation arose down the track, she could use the recording to her advantage.
  • The law is very clear that secretly recording a conversation "just in case" litigation arises at some point in the future is not protecting a lawful interest. As such, the making of the recording was illegal and the recording is inadmissible into evidence.
  • Contrary to what my brother has argued, this is not a case where the court should exercise its discretion to admit the illegally obtained evidence anyway. If the court were to do so, it would endorse the view that it is acceptable for children to secretly record their parents' conversations just because they believe they are entitled to receive a distribution from a parent's estate.
  • The court's interest in upholding the public policy of excluding illegally obtained evidence far outweighs the probative value of L's recording.
  • Given that the making of the recording was illegal and that it would seriously undermine public policy to admit such a recording, the court should rule that the evidence is inadmissible.

So, which case won?

Cast your judgment below to find out

Joshua Crowther
Will disputes
Stacks Law Firm

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.