In a recent interlocutory matter, Rees J found that a recording of a private conversation between daughter and father was admissible in family provision proceedings despite the fact the father did not know the conversation was being recorded.
There being no previous decisions relating to admission of secret recordings in will disputes, Her Honour reviewed previous decisions in the criminal and civil context. The guiding principle in determining whether secret recordings may be admissible is whether the recording “may be reasonably necessary for the protection of the lawful interests” of the person making the recording.
Her Honour summarised the principles as:
(a) whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose;
(b) whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting the conversation;
(c) whether there were other practical means of recording the conversation, for example reporting the matter to police or making a contemporaneous file note;
(d) whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence – one persons word against another . Recording “just in case” there is a dispute or for the sake of making an accurate record are not enough.
Reasons for admissibility
The recording was admitted into evidence as Her Honour found that at the time the recording was made it was clear there was a serious dispute between the children, and the person making the recording had a lawful interest in recording the conversation.
The lawful interest was said to be proving that one daughter was not living in the property with the father as she claimed. It meant that the daughter would be believed when asserting that her sister did not reside with the father after the father’s death. Her Honour found another lawful interest was protecting the daughter’s legal interest in her father’s estate. The father had always said his estate would be divided equally between the three children, however his final will said otherwise. The recording would assist in the daughter establishing that her sister was being dishonest.
There was no suggestion it would have been appropriate for the daughter to report the conversation to the police.
It was clear from the recording the daughter was trying to obtain admissions from her father. The father’s responses appeared calm, with no hint of coercion, in contrast to a video the other daughter had made, in which Her Honour considered was made only to appease the other daughter.
A word of caution
Her Honour was at pains to dispel others recording conversations in secret for the purposes of family provision proceedings, stating it was an unpalatable and unseemly prospect. Her Honour made the following comments:
- Making a secret recording of a testator will not ordinarily reflect well on you. It is a breach of privacy and it makes uncomfortable listening.
- Any parent who knows their child well will likely say what will contribute to a pleasant exchange and enjoyable meeting in casual conversation. A parent may well say what they think their child wants to hear and avoid “home truths” if they think it will lead to conflict. It may not be particularly accurate as to what the testator actually thought on contentious subjects.
- The recording may contain evidence which is unwittingly damaging to the person who made it.
Recording conversations in secret should not become standard practice when discussing family disputes or for the purposes of proceedings after someone’s death.