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DNA Test ordered in inheritance dispute where paternity questioned

6th June, 2018

Rhiannon Edwards, Solicitor in the Wills, Trusts and Tax department, discusses the recent judgement in the case of Nield-Moir v Freeman, where the High Court has ordered one of two daughters of Colin Birtles, who has died, to take a DNA test to prove paternity as part of an inheritance dispute

In an unusual case, the High Court has ordered one of two daughters of Colin Birtles, who has died, to take a DNA test to prove paternity as part of an inheritance dispute.

The dispute arose between two sisters, Janice Nield-Moir and Lorraine Freeman – both daughters of Veronica Birtles, who had also died, and both born during Veronica’s marriage to Colin.

The sisters were estranged and Janice had lived in Australia for many years before Colin’s death. There was one year between Janice and Lorraine, but suspicion had long surrounded whether or not Colin was Lorraine’s father, despite his name appearing on her birth certificate.

When Colin died, and with no Will being left, Lorraine had taken out a Grant of Letters of Administration (probate where there is no will) to enable her to collect in and distribute the estate. She closed Colin’s modest bank account and sold his house to herself.

When Janice found out that her father’s estate had been administered by Lorraine she applied to the court to have the Grant set aside and sought  a declaration that Lorraine was not entitled to a share in Colin’s estate as she was not his biological daughter.

Whilst ordering medical testing is commonplace in other areas of law, such as family and personal injury, ordering a child to prove paternity for the purposes of inheritance is unprecedented. A recent case allowed an order to be passed to test DNA samples taken from a deceased man in order to establish paternity for inheritance purposes, because a claim was being made by a man who believed himself to be the child of the deceased.  What sets this case apart is ordering a child to submit to the testing against her will.

The Judge requested submissions on the Human Rights implications of ordering the test, particularly the right to respect for family and private life. The judge balanced this against the ‘public interest in the accurate resolution of inheritance disputes’ and considered that ordering the DNA test would be proportionate in the circumstances.

The Judge also considered the potential mental health implications that a negative result could have on Lorraine. He held that, as upset had already been caused through the dispute, the DNA testing would not compound this unnecessarily.

The court held that the DNA test should go ahead. Whilst the court cannot force Lorraine to submit to a saliva-swab being taken against her Will, her refusal will mean that an adverse inference can be drawn in relation to Lorraine’s paternity.

Aaron & Partners’ team of experienced lawyers can advice on all aspects of inheritance, including dealing with disputes over wills.

Clive Pointon

Partner & Head of Wills, Trusts & Tax
Email: [email protected]
Tel: 01244 405513

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