A Will, Family Provision & the Surveillance Devices Act

Robert Rathswohl, sought a family provision order under the Succession Act 2006 (NSW) from his father’s estate for his maintenance and advancement in life. Robert’s sister, Yvette Court, is the executor of their father’s estate.

In January 2017, while on a family visit to their mothers nursing home an argument arose where Yvette protested that Robert and their sister Lisa Davies had left the care of their elderly parents to her alone.

Later that day Robert and Lisa drove their father back to his home; after discussing the events at the nursing home, they looked for a Will the father had made in 2007 – but could not find it. Robert and Lisa took prompt steps to have a replacement Will executed by the father; leaving his Estate to his children equally.

On 15 March 2017, the father executed another Will leaving the family home to Yvette and funds in a bank account to Robert and Lisa. Yvette promptly sent a text to her brother advising that a new Will, power of attorney and enduring guardianship had been executed. In cross-examination, Robert gave the following evidence:

Yvette … moved into the house. One week after she moved in, she texted me and Lisa, ….saying that dad had left her the house. Lisa and I both thought that was outrageous because we knew there was a will but Yvette didn’t know there was a will previous to that”

On the evening of 29 April 2017,  Lisa recorded a conversation with the father using her mobile phone, without his knowledge or consent

 “to prove that Yvette wasn’t there every day like she stated she was”.

Objection was taken under s138 of the Evidence Act 1995 (NSW) that the recording was improperly or illegally obtained. With the agreement of counsel, the Court listened to the sound recording to consider whether it was reasonably necessary for the protection of Lisa’s lawful interests under s7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW), and thus not an offence under that Act.

The Court stated that whilst none of the children had a legal right or title to insist that their father leave his Will in any particular manner, they might have an interest in ascertaining whether Yvette’s claim to warrant a greater entitlement to the father’s Estate was truthful or exaggerated.

The Court accepted that when Lisa had spoken to her father over the years about his Will, he consistently stated that his Estate would be divided equally amongst the three children. The dispute between the siblings had crystallised into a real and identifiable concern about the imminent potential for significant harm to Lisa’s lawful interests. Similarly, the recording reflected Lisa’s concern for her father’s welfare.

However, the Court was concerned that elderly parents being secretly recorded by those who believe they are entitled to receive a distribution from an Estate is unpalatable and unseemly. It not only breaches the testator’s privacy but, a parent may say what they perceive the listener wants to hear to avoid “home truths” if they think it is likely to lead to conflict; the recording may also contain evidence which is unwittingly damaging to the person who made it.

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