Care Worker Inherits Country Estate Following DNA Test

Contesting a will with will claim solicitors no win no fee specialist: DNA testing where paternity or maternity is already proven

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether it is possible to force DNA testing where paternity or maternity is already proven by way of an official birth certificate

Requirements to contest a Will

It is necessary to have an interest in an estate to contest a Will. By way of example:

– to proceed with a claim against the legal validity of a Will one must (generally) have an interest in the outcome of the claim (either because of a bequest in a previous Will or under the rules of intestacy where there is no previous Will)

– to proceed with an alternative or additional claim for financial provision under s. 2 of the Inheritance (Provision for Family and Dependants) Act 1975, ordinarily one must be the deceased’s child (although of course claims can be made by step-children and those maintained by and/or married to the deceased).

It is easy to see then how proof of one’s paternity/maternity can be relevant issues and generally speaking the provision of official copies of one’s birth certificate is all that is necessary. These can be obtained very simply and efficiently from the General Register Office:

General Register Office (GRO) – Official information on births, marriages, civil partnerships and deaths

Presumption of paternity/maternity

It appears that ordinarily a birth certificate revealing paternity and/or maternity (in other words identifying the mother and/or father) gives rise to a presumption that the mother and/or father are those so identified. Presumptions can of course be rebutted on the balance of probabilities and the position is no different here. In Nield-Moir v Freeman [2018] EWHC 299 (Ch) HHJ Matthews dealt with a claim that the defendant’s father was not as noted on her birth certificate. He confirmed at paragraph 5 of his Judgment that:

“Accordingly there was a (common law) presumption that the deceased was the defendant’s father, rebuttable on the balance of probabilities….”

For the entire case see – Nield-Moir v Freeman [2018] EWHC 299 (Ch) (21 February 2018) (bailii.org)

In Nield-Moir HHJ Matthews appeared to find that the provision of witness evidence from third parties supporting the applicants case the defendant was not the deceased’s biological daughter (despite the fact that he was named on her birth certificate, was born during the currency of the deceased’s marriage to her mother and in relation to whom the deceased had paid maintenance) was sufficient to persuade him to find a way of ordering the defendant to undertake a DNA test (albeit he appeared to accept he may not have had the jurisdiction to force the defendant to take the test – see below). He seems to have been particularly unimpressed with her refusal to undertake the test.

He appeared to accept that it was sufficient to raise via such contrary witness evidence, “triable issues” to be determined later at trial and not necessarily prove them to persuade a Court to order DNA testing. For example, at paragraph 50 towards the end of his Judgment he stated:

“The applicant has a number of witness statements from third parties, who say that they were told by the deceased that the respondent was not his daughter. Of course, I cannot and do not say at this stage that those statements are correct. They can and will be tested at trial….On any view, the evidence raises an issue to be tried. And DNA evidence would be highly relevant to this issue. As I have already said, it is quick, painless, risk-free, and in this case also cost-free to the respondent, as the applicant has confirmed that she would pay in the first instance”

Jurisdiction to order DNA testing

In the first instance, the Court would, it seems, be concerned to establish that the proposed DNA testing could be meaningful – in other words could yield a result on the balance of probabilities. In Nield-Moir HHJ Matthews found so in paragraph 13 of his Judgment:

“Mr Clarke accordingly submits that although the test cannot answer the question of full or half-siblings definitively it can do so to a very high degree of probability. I accept this submission. In my Judgment the proposed evidence would be sufficiently accurate for the purpose of answering this question”

Turning to “jurisdiction” the position is more nuanced.

There is a “jurisdiction” by statute under Part IV of the Family Law Reform Act 1987 under s. 23 (1) in any civil proceedings in which the parentage of any person fails  to be determined..”

This is mistakenly (and confusingly) referred to in paragraph 20 of HHJ Matthews Judgment in Nield-Moir as falls

It does not then necessarily generate a legal right to test DNA in Will dispute and Will contest claims.

Instead, HHJ Matthews found variously that the court had an inherent jurisdiction to order a test, but not necessarily by force although it could get around this problem by simply providing that in circumstances of non-compliance it can (and will) draw adverse inherences at trial (where of course the presumption of paternity or maternity [derived from the official birth certificate] is ultimately determined). For example at paragraphs 36 and 37 of Nield-Moir:

“….the court may well have an inherent jurisdiction to order a person to consent to giving such a sample so that it may be DNA tested. A failure in such a case to consent might then amount to a contempt of court…..But I need not decide that question now, because in fact that is not the order sought here. What the applicant instead asks for is similar to a direction given under s. 20 of the 1969 Act, with a similar consequence in case of non-compliance, ie simply that an adverse inherence may be drawn against the respondent. The court might in an appropriate case attach a different sanction to the direction, such as a stay of the claim or the striking out of the defence, in case it be not complied with (an unless order)”

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.

Want to have your say? Leave a comment

Your email address will not be published. Required fields are marked *

Read more stories

Join over 6,000 wills and probate practitioners – Check back daily for all the latest news, views, insights and best practice and sign up to our e-newsletter to receive our weekly round up every Friday morning. 

You’ll receive the latest updates, analysis, and best practice straight to your inbox.

Features