Court Orders DNA Paternity Test in a Probate Dispute

Many probate cases come to court where there are questions over the paternity of a beneficiary. That was the case in Nield-Moir v Freeman.

The facts were that Colin Birtle died without a Will. He had been married to Veronica but they divorced in 1977. Veronica had two children, Lorraine Freeman and Janice Nield-Moir, the two people involved in the case. Veronica died many years ago.

Janice had been living in Australia for some time, and after Colin died, Lorraine applied for probate (Grant of Administration). It was quite a small estate, a terraced house and a small amount of cash in the bank. When Janice found out, she was not happy about it. She applied to the court to ask the court to withdraw the grant and also to issue a declaration that Lorraine was not entitled to a share of the estate. She said that Colin was not Lorraine’s biological father. She said she wanted the court to order Lorraine to give a saliva sample so that a DNA test could be performed.

You might be thinking that this is quite a simple matter. The court can order Lorraine to give a DNA sample. But, nothing is ever that simple in the pursuit of justice. The evidence in the case is paramount.

Lorraine refused to give a DNA sample. In her defence, she said that not only was her mother married to Colin Birtles at the time of her birth but that he was named as the father on her birth certificate. She argued that as such, there was a common-law presumption of their relationship. Moreover, she said, after the Birtles were divorced, Colin Birtles paid maintenance under a court order in respect of Lorraine until she was 16 years old. She dismissed any suggestions that he was not her father as salacious gossip and innuendo.

Janice had collected a number of witness statements from third parties to the effect that Birtles told many people during his lifetime that Lorraine was not his biological daughter.

After hearing all the evidence from both sides, the court decided it would order Lorraine to consent to a mouth swab saliva test for DNA testing purposes as that would provide a definitive resolution to the issue.

If Lorraine fails to consent to the swab, the court can draw an adverse inference from her refusal, which of course will harm her case. In addition, the court can hold her in contempt of court and her case could very well be thrown out of court.

I think Lorraine should take the DNA test because I think the need to know her true paternity must surely outweigh the possible loss of the inheritance. Do get in touch if you want some advice on your own circumstances.

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