In a legal first, a woman has been ordered to take a DNA Paternity test to prove she is the biological daughter of her deceased father.
The case (Nield-Moir v Freeman [2018 EWHC 299 Ch]) concerned the estate of the late Colin Birtles who died without making a will in 2013 leaving a small amount of cash and a terraced house in Oldham. Mr Birtles and his then-wife Veronica Birtles had two daughters, Lorraine Freeman and Janice Nield-Moir, who were born in the early sixties.
Following Mr Birtles’ death, Mrs Freeman obtained a grant of letters of administration in order to distribute his estate. When Mrs Nield-Moir, who has lived in Australia for many years, learned that her sister had obtained the grant in her absence she applied to the court to revoke the grant as she wanted to play a part in the administration of Mr Birtles’ estate. She also asked the court to order that Mrs Freeman take a DNA Paternity test to prove that she is entitled to a share of Mr Birtles’ estate, alleging that Mrs Freeman was not, in fact, Mr Birtles’ biological daughter. Mrs Nield-Moir claimed that Mr Birtles told various people during his lifetime that Mrs Freeman wasn’t his biological daughter and she provided a number of witness statements to the court to this effect.
Mrs Freeman argued that the allegations were nothing but ‘gossip and hearsay’ and, because her mother was married to Mr Birtles when she was born and he is named as her father on her birth certificate, there is a common law presumption that he is her father.
When deciding whether to order that Mrs Freeman take a DNA Paternity test, the Judge said there were three questions to be answered.
- whether the DNA Paternity test would be sufficiently accurate;
- whether the court had jurisdiction to make the order; and
- if the answer to these first two questions was yes, whether in the circumstances the court ought to make the order.
The Judge reasoned that as the issue of parentage was important in this case and DNA testing is likely to produce a robust conclusion one way or the other. He did not see why a person could not be ordered to consent to a DNA Paternity test in the same way that a person could be ordered to consent to a search of their premises and seizure of items in other types of cases, especially given the fact that a DNA sample can be taken unobtrusively through a mouth swab saliva sample.
The Judge therefore ordered that Mrs Freeman consent to providing the DNA sample to prove that she is Mr Birtles’ biological daughter and consequently entitled to a share of his estate. It was noted that should Mrs Freeman continue to refuse to provide the sample, the court would draw an adverse inference against her case.
If you have any queries in relation to obtaining or contesting a grant of administration to the estate of a person who died without making a will, please do not hesitate to contact Danielle Pawson on firstname.lastname@example.org or 0113 227 3634 for assistance.
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