Asheetha Jelliffe, Partner at Bridges Lawyers, discusses whether conversations recorded without consent can be admissible in the context of family provision litigation by looking at the relevant legislations and case law.
Section 100 of the Succession Act 2006 (NSW) provides, for the purpose of the family provision litigation, that a statement made by the deceased’s person during their lifetime is admissible as evidence.
However, section 7 of the Surveillance Devices Act 2007 (NSW) prohibits the use of a device to record a private conversation, without a warrant (or other appropriate authorisation), and without the consent of all parties to the conversation. The section allows as an exception circumstances where one of the principal parties to the conversation consents to the recording and it is “reasonably necessary for the protection of the lawful interests of that principal party”.
In Rathswohl v Court  NSWSC 1490, Justice Rees was asked to rule on the question of admissibility of a recorded conversation between the deceased and one of the daughters of the deceased (“Mrs Davies”), without the deceased’s consent, in the context of a family provision claim brought by the son of the deceased (“Mr Rathswohl”). Another daughter of the deceased (“Ms Court”), was the beneficiary of a large part of the deceased’s estate and defendant in the proceedings.
The recorded conversation took place following the disclosure by Ms Court that the deceased had changed his Will, previously dividing his estate equally, now leaving Ms Court a larger portion, and in the context of a conflict between Mrs Davies and Ms Court regarding the deceased’s care. Ms Court had claimed, in “colourful and impolite” text message exchanges that she was providing regular care and visited the deceased every day. Mrs Davies gave evidence that she recorded the conversation, where the deceased was asked specific questions about the level of Ms Court’s involvement in his life, in order “to prove that [Ms Court] wasn’t there every day like she stated she was”.
As a preliminary comment, and although nothing turned on it in this case, Rees J noted that it would have been prudent for Mrs Davies to request a certificate under section 128 of the Evidence Act 1995 (NSW), given that the recording was potentially illegally obtained.
Her Honour then considered the admissibility of recordings, obtained without consent, in the context of criminal proceedings, where the recording may have been the only practicable mode to defend an allegation or reasonably necessary to prove the crime, and in family law proceedings, where it is necessary to protect the wellbeing of children or their safety.
Turning to civil claims, Rees J considered whether the term “lawful interest” equated to “legal interest” (legal right, duty or liability). Her Honour stated that making a recording for the purpose of accurately recording a meeting or just in case there was some litigation in the future would not constitute a “lawful interest”, unless the parties are already in dispute.
In all cases, the Court was required to consider whether it was practical to obtain a warrant or make a contemporaneous file note to record the conversation. Rees J was satisfied with Mr Rathswohl’s submissions that telling the deceased that the conversation was being recorded would have caused him to ‘clam up’ and that it was not possible or appropriate to obtain a police warrant. She was also sympathetic to the submission that the veracity of any contemporaneous note made by Mrs Davies would have been challenged Ms Court. However, Rees J was not receptive to the submission that the protection of the privacy of a deceased person was less important than a person who is alive.
Her Honour was satisfied that there was a serious dispute between the parties regarding the deceased’s Will at the time the recording was made, and that Mrs Davies had a lawful interest, both legal and otherwise, in making the recording, including:
- to obtain admissions, and for those admissions to be not disbelieved in future litigation;
- to ascertain whether Ms Court’s claim, that she was entitled to a greater share of the deceased’s estate due to the extent of her involvement in his life, was in fact warranted; and
- to ensure that the deceased was being looked after.
Although in this case, Rees J decided that the recording was admissible, she warned those who may feel entitled to an estate against making secret recordings and outlined some ‘pitfalls in recording a testator, either covertly or with their consent’. Her Honour said that covert recordings do not usually reflect well on the maker of the recording, as it is a breach of the deceased’s privacy, is ‘uncomfortable’ to listen to, and may well ‘contain evidence which is unwittingly damaging to the person who made it’. Further, as other Judges have commented upon before in will and estates litigation, it is not unusual for testator parents to refrain from offending their children, and avoid conflicts with them, by saying things that their children want to hear. The recorded conversations may not accurately reflect the parent’s honest views.
It follows from all of this, that particular caution should be taken when dealing with recordings made without the consent of all parties to the conversation, so that a criminal offence is not committed by breaching the Surveillance Devices Act 2007. Even in circumstances where consent is given, in litigation involving investigation about testamentary capacity of the deceased, there may well be an issue taken about the deceased’s capacity to give consent. In any case, if it is intended to rely on a recording, consider the context in and purpose for which the recording was made, have careful regard to how the recording may reflect on the person making the recording, and do not overlook an application for certificate under section 128 of the Evidence Act 1995 (NSW).
Asheetha Jelliffe has 17 years’ experience in Wills and Estates Law and became an Accredited Specialist in 2011. Although her main area of practice is in contested estate litigation, including testamentary capacity matters, family provision cases and other trust and estate administration suits, she has utilised that experience in her growing estate planning practice.
She also has experience in Elder Law related issues and applying for ‘out of the ordinary’ grants of probate and letters of administration.
Asheetha is a member of the Society of Trust and Estate Practitioners. Asheetha has been listed in the 2020 Doyles Guide’s lists of Leading Estates Litigation Lawyers and Recommended Wills Estates and Succession Planning Lawyers in New South Wales; and Recommended Wills and Estates Litigation Lawyers in Australia.