“The court has to listen to this secret recording, it proves I should get my fair share of the estate!” Which case won?
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.