Cases Wherein Deceased DNA Testing Was Used By The Court (Part 3)

Deborah Warrie

Deborah Warrie

In the matter between D v M and two others, Held in the High Court of South Africa, Gauteng Division, Johannesburg, under case number: 30619/2015, the Court after considering the application brought by an executor of the estate of a deceased person, in terms of which the executor request that the High Court ordered the mother of a minor child as well as a minor child to subject themselves to a DNA test, in order to establish whether another minor child of the deceased was, in fact, the biological child of the deceased. In this matter and various other matters before it was established that a High Court with the necessary jurisdiction may be approached as in the matter of D v M and two others to force the parties to subject them to DNA testing and even to exhume remains of a deceased person to enable DNA test to be done.

Nield-Moir v Freeman [2018] EWHC 299 (Ch) – the Family Law

In this case, Colin Birtles died intestate leaving two daughters Janice and Lorraine.  In accordance with the statutory intestacy provisions, they stood to inherit the estate equally between them.  However, Janice alleged that Lorraine was not the deceased’s biological daughter which, if correct, would have meant that she inherited the whole of the estate herself.

She told the court that her father had told her this was the case during his lifetime, producing various witness statements from others in support. Lorraine defended, stating that she was born during the period of the deceased’s marriage to her mother (raising the common law presumption of parentage) and he was named as her father on her birth certificate.  After their parents’ divorce, he also paid maintenance for her until she was 16 years old. She said the allegations were ‘nothing but gossip and hearsay. She refused to consent to DNA testing. The court had to decide whether they had the authority to order that DNA testing should be carried out. There was no clear legal authority. The judge did not go so far as to compel it but made an ‘unless’ order requiring her to either submit to the test or the court would draw inferences from her refusal.

Other Instances:

DNA testing can be useful in other ways and not just to resolve estate disputes after death.  In the case of Anderson v Spencer [2018], EWCA Civ 100 in 2018 the deceased was diagnosed with bowel cancer, which could be hereditary. Therefore, the applicant wanted to establish his parentage as he was advised that if the deceased was his father, he should undergo a colonoscopy every two years.  The Court of Appeal agreed with the High Court that it could. In 2016, the Privy Council in the case of Re Baronetcy of Pringle of Stichill 2016 GWD 20-360 held that DNA evidence collected for a family research project could be used to resolve a Scottish succession dispute.

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