The Power of the Court to Order DNA Tests in Inheritance Disputes

Category: Inheritance Disputes

Colin Birtles died on 16 June 2013. He did not leave a Will. He had been married to Veronica but was divorced from her in 1977. Veronica gave birth to 2 girls, Janice in 1961 and Lorraine in 1962. Lorraine applied for Probate as the daughter of Colin and obtained it. Janice, however, had grounds to suspect that Lorraine was in fact not the daughter of Colin and if that was right, although they were half-sisters, as Lorraine was not the biological daughter of Colin, then she was not entitled to inherit anything from his estate. She therefore commenced proceedings in the High Court to set aside the Probate.

She also applied for an Order that Lorraine submit to DNA testing to establish the likelihood or whether they were full or half-sisters. Lorraine refused to submit to the test and the Court had to decide whether the Court had a power to order that she should submit to a test.
Lorraine argued that, as the deceased’s name was on her Birth Certificate as her father, and as he had paid child maintenance for her until the age of 16 after he divorced Veronica, that there was a presumption that she was his daughter and there was no need for her to submit DNA testing and it was not right to make her do so. She also argued that the Court did not have power to make the order and that her Human Rights were being infringed.

On the understanding that the genetics expert could produce an opinion as to whether or not the two parties were full sisters to a very high degree of probability the Court felt that the test should be ordered and indeed the Court did have the ability to make such an order. The Court also considered Human Rights issues and decided that Lorraine could not argue with any effect that her Human Rights were being infringed.
The result of the hearing therefore was that Lorraine would have to submit to a DNA by giving a saliva sample within 28 days. If she did not do so, the Court would be able to draw “an adverse inference” in other words the Court would be entitled to come to the conclusion that she was not a full sibling and would have to pay back her inheritance.

Michael Shiers is a Solicitor at Nash & Co Solicitors in Plymouth. He has been a member of the Law Society’s Personal Injury Specialist panel since 1996 and is an accredited Senior Litigator of the Association of Personal Injury Lawyers.

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