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.
Expert commentary on the court's decision
Supreme Court rules in favour of brother, allowing recording into evidence
In the case Rathswohl v Court [2020] NSWSC 1490, the NSW Supreme Court found in favour of the brother, Robert Rathswohl, ruling that the recording made by his sister, Lisa Davies, was admissible as evidence to support his family provision claim.
The court rejected the arguments of the other daughter who was also the executor, Yvette Court.
Illegally obtained evidence inadmissible under Evidence Act
Under section 138 of the NSW Evidence Act 1995, evidence that has been obtained in contravention of an Australian law must not be admitted in court, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in such a way.
Use of listening device to record private conversation illegal unless necessary to protect lawful interest
In determining whether the recording made by Lisa was inadmissible under section 138, the court had to determine whether the recording was obtained in contravention of the law.
This question turned on whether the making of the recording was illegal under section 7(1)(b) of the NSW Surveillance Devices Act 2007 (“the Act”).
According to section 7(1)(b), It is an offence for a person to knowingly use a listening device to record a private conversation to which the person is a party.
However, it is not an offence under section 7(1)(b) if a principal party to the conversation consents to the use of the listening device and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that party (section 7(3)(b)(i) of the Act).
Therefore, the question before the court was whether recording the private conversation was reasonably necessary for the protection of Lisa’s lawful interests
Surveillance Devices Act targeted at preventing invasions of privacy
The court, quoting from parliamentary support material, highlighted that the Act and section 7(1)(b) serve “to safeguard against the unjustified invasion of privacy that can be occasioned by the use of electronic surveillance” and also:
Noting that the words and phrases in section 7(3)(b)(i) are not defined in the Act , the court turned to relevant civil, criminal and family caselaw for guidance.
Desire to have reliable record of conversation in case of future dispute not usually a lawful interest
The court noted that its research of the caselaw did not reveal any cases specifically concerning the use of a listening device in a family provision claim.
The closest case factually was Thomas v Nash, in which a son secretly recorded conversations with his mother in an attempt to show whether she had capacity to make a will.
The son claimed that he did so in case his mother forgot things. However, the deciding court concluded that he actually made the recordings in case it might later turn out that he could use them to his advantage in some way.
The court in Thomas v Nash highlighted that the expression “relevant interest” is not comprehensively defined in caselaw. It is an expression best left to be applied case by case to the particular facts, subject to some general guidelines.
One of these guidelines is that where no litigation is contemplated at the time of the recording, the mere hope that one might use the recording to his or her advantage in future litigation is not a lawful interest.
In other words, you can’t make a secret recording “just in case”.
Accordingly, the son’s recording was not admitted into evidence.
Secret recording not usually reasonably necessary if complaint can be referred to police for issue of warrant
In Sepulveda v R, a man made a secret recording of a conversation with an accused person for the purpose of bringing justice for alleged criminal acts committed by the accused against him and his brothers when they were children.
The man then sought to use the recording to blackmail the accused.
The deciding court considered whether the recording was reasonably necessary.
“Reasonably necessary” was taken to mean “appropriate and not essential”.
The court ruled that the recording was not “reasonably necessary” and therefore was inadmissible. This was because the man could have approached the police with his complaints, and the police could have obtained a warrant to record the conversations lawfully.
It was also noted that the exception in section 7(3)(b)(i) should be construed narrowly, to avoid people in the community making covert recordings of conversations, rather than bringing matters to the relevant authorities.
Lawful interest can exist even if police warrant an option
A somewhat analogous case to Sepulveda is DW v R.
A 14-year-old girl made a secret recording of her father, who was later convicted of indecent assault and child pornography offences.
The court found that the child’s interest not to be a victim of serious criminal offences was a lawful interest, and that it was reasonably necessary to make the recording to protect this lawful interest.
The court distinguished the facts from Sepulveda because the girl was young, possibly unaware of the ability to complain to the police, thought her stepmother would not believe the allegations, was frightened of her father and of potential further abuse and did not seek to blackmail her father.
Parent may have lawful interest justifying secret recording if other parent suspected of child abuse
In Latham v Latham, a father made secret recordings of the mother of his children, including recording abusive comments indicating that she was a child abuser.
The recordings were admitted as evidence on the basis that they were reasonably necessary to protect the father’s lawful interests, including “the likelihood that the wife would deny the conversations; that the husband needed to protect himself from risk of the accusation that he had fabricated the conversations; and, to avoid being labelled a liar”.
Credibility at stake in serious dispute between siblings
After reviewing the relevant caselaw and applying it to the facts of this case, the court was satisfied that it was reasonably necessary for the protection of the lawful interests of Lisa Davies to record the conversation with her father.
Unlike “just in case” scenarios such as Thomas v Nash, a serious dispute existed between the children as to their father’s will and care at the time the recording was made.
The children were jostling for position, with one daughter, Yvette, claiming she was the only one caring for the parents.
Her brother Robert and sister Lisa thought Yvette was responsible for the disappearance of their father’s will, which left his estate to the children equally.
Lisa had a lawful interest in ensuring that her evidence in this serious dispute was not disbelieved. The recording would ensure that her evidence was credible, especially since her father would not be alive to speak on the subject at the time of any litigation.
Lawful interest in ascertaining veracity of sister’s claims
The court found that at the time of the recording, Lisa also had a lawful interest in ascertaining whether her sister Yvette’s claim to warrant greater provision under her father’s will was truthful or exaggerated.
This was so even though Lisa did not have a legal right to dictate how her father divided up his assets in his will.
No blackmail involved and no avenue to obtain police warrant
The court noted that, unlike in Sepulveda, Lisa was not using the recording to blackmail her father. Rather, she had an identifiable concern about the potential for significant harm to her lawful interests.
The court also noted that, unlike in Sepulveda, Lisa had no avenue to ask the police to obtain a warrant, since this was not a criminal case.
Given the court’s conclusion that it was reasonably necessary for the protection of Lisa’s lawful interests to record the conversation with her father, no offence was committed. So, the recording could not be ruled inadmissible under section 138 of the Evidence Act.
Recording parent for purposes of will dispute is risky strategy
Even though the court found that Lisa had legally made the recording and that the recording was admissible as evidence, it can be a risky strategy to secretly record one’s parent for the purposes of a will dispute.
Knowingly using a listening device to record a private conversation to which the person is a party is a criminal offence, punishable by up to five years in prison.
Secretly recording the testator also comes with other potential pitfalls.
First, as the court noted, making secret recordings does not ordinarily reflect well on the person doing so, because it is a breach of the will maker’s privacy. This breach is not lessened just because the will maker is deceased.
The court also emphasised that courts may have limited regard to a recording because it may not be particularly accurate as to the testator’s true thoughts on contentious subjects.
Finally, the court pointed out that a recording may unwittingly contain evidence which is damaging to the person making it.
For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.