13 March 2018

Who’s the Daddy?

By Miranda Marshall, Director, Hayes + Storr.

The High Court has ordered the daughter of a deceased man to be DNA-tested to verify that she is in fact his biological daughter. Colin Birtles died intestate, i.e. without having made a Will, in 2013, leaving a terraced house in Oldham and a small amount of cash. He had two daughters, Lorraine and Janice, born in the early 1960s to his late ex-wife Veronica.

Lorraine had lived in Australia for many years. Janice stayed in England. When her father died she obtained from the Probate Court a Grant to administer his estate. When Lorraine heard of this, she issued a claim for Revocation of Janice’s Grant of Administration, as she wanted to administer her father’s estate herself. She also asked the Court to issue a Declaration that Janice was not entitled to any part of the estate and alleged that Janice was not in fact Colin’s biological daughter.

Lorraine gathered together a number of witness statements from third parties to the effect that Colin had said as much to several people during his lifetime. Lorraine is asking the Court to order that Janice submits to a DNA test, to produce scientific evidence whether Colin was Janice’s father. Lorraine would be DNA tested too. A niece who had nothing to do with the dispute would also be tested as a ‘control’.

Janice refused to agree to the DNA test. She dismissed the allegations of her ‘irregular parentage’ as ‘nothing but gossip and hearsay’. Janice said that not only was her mother married to Colin at her birth, but that her birth certificate names Colin as her father, creating a common law presumption that he was her father. Janice said that, after her parents divorced, Colin paid maintenance in her respect until she was 16.

Lorraine’s request for a Court Order forcing Janice to take the DNA test was granted by the Judge who accepted that there were three questions to be decided. These were: first, whether the DNA test would be sufficiently accurate; secondly, whether the Court had authority to make the Order; and, thirdly, if the answer was ‘yes’ to both, whether the Court ought to make the Order in this case.

After taking extra evidence regarding the human rights aspects of the case, the Judge agreed to grant the Order for DNA testing and accepted that the Court had inherent jurisdiction to do so. The Judge made the following points: A DNA test requires merely a saliva sample by mouth, rather like a Search Order for other purposes, and so is not invasive. The test produces a ‘robust conclusion’ one way or the other. Failure to give consent to the DNA testing might amount to Contempt of Court and the Court could also draw an adverse inference against Janice’s case if she refused.

The lessons we learn from this case are not just the obvious human ones but of the benefits of making a Will, especially where one’s family situation is less than straight-forward.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 710210. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.

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