Intestacy and DNA testing of children on the death of a father
23 July 2018
The decision of the High Court following the death of Colin Wilson Birtles (who died leaving two daughters and without a will) highlights the importance of having a will.
In this case, the first daughter obtained a Grant of Representation so that they could administer the estate of their father. The second daughter applied to the court for an order to have the Grant set aside and sought a declaration that the first daughter was not Mr Birtles’ biological daughter (the first daughter would therefore not be entitled to administer the estate or receive anything from Mr Birtles’ estate under the rules of intestacy).
The first daughter argued that her mother and Mr Birtles were married at the date she was born and that Mr Birtles was named on her birth certificate; therefore “there was a common law presumption that [Mr Birtles] was the [daughter’s] father, rebuttable on the balance of probabilities.”
The court decided in the circumstances of the case that the first daughter should be compelled to give a saliva sample for the purposes of a DNA test. If the first daughter refused, the court said that it would draw adverse inferences against her.
In this case both of the daughters were adults, but what if there was doubt as to paternity (and therefore right to inherit on the death of a father) and one or more of the children had been a minor? As second families become more commonplace there is a likelihood of this happening more often. A minor child cannot consent to a DNA test and it can be imagined that a child’s mother may not wish to consent especially if there is a chance that the paternity of the child is in doubt.
If the person with parental responsibility of a minor child refuses to consent to their child having a DNA test then an order of the court may be sought allowing a sample to be taken “if the court considers that it would be in [the child’s] best interests”.
In the case of Mr Birtles, the court considered submissions on the human rights implications of ordering the test, particularly the right to respect for family and private life. The judge balanced this against the “public interest in the accurate resolution of inheritance disputes” and considered that ordering a DNA test would be proportionate in the circumstances.
The judge also considered the emotional toil that a negative DNA result might have but held that upset had already been caused by the dispute and the DNA testing would not compound this unnecessarily.
It cannot be known what Mr Birtles would have wanted in the case that one of his daughters had turned out not to be his biological child. It is very possible that he would have wanted both daughters to be treated equally; he had never challenged either daughter’s paternity.
All of the upset and costs involved in the sad case of Mr Birtles and his daughters (and many other similar cases which do not end up in the court) can be avoided where a carefully prepared will is in place. Don’t leave it to chance; when emotions are high following a death; cracks can appear in even the most seemingly amicable family relationships.
The content of this article is for general information only. For further advice, please contact a member of Birketts’ Private Client Advisory Team.
This article is from the summer 2018 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website. Law covered as at July 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2018.