The use of DNA testing to determine parentage has an important impact on determining entitlement under Wills, trusts and claims under the Inheritance (Provision for Family and Dependants) Act 1975. In recent years it has been increasingly used to resolve estate disputes. In most cases it will be undertaken with the consent of the relevant parties.
Bagguley v E
In the Court of Protection case of Bagguley v E last year a vulnerable individual who was 76 and suffering from severe dementia had a property and affairs deputy appointed to make decisions on their behalf. The deputy was seeking permission for DNA samples to be taken to establish paternity. The patient did not have sufficient capacity to make the decision. This meant that the court had to decide and the basis for the decision was whether the test would be in the patient’s best interests.
The court decided that it was in his best interests for the DNA sample to be taken. In making their decision, the court took into consideration the following factors:
- In the past when he had capacity he had organised tests for the same reason (the results of which were unfortunately not conclusive) so it was felt that if he had capacity to do so, he would consent.
- The sample needed for the test could be obtained with minimal intrusion.
- He had assumed some parental responsibility during his lifetime. He had also demonstrated that he wanted to ‘do the right thing’ by his potential offspring.
The court decided that thinking about a person’s best interests may sometimes include considering issues that arise after death. This was because his family remembering him in a positive light was in his best interests. Also, the DNA testing might prevent a later dispute over his will.
This decision follows other cases which have also suggested that avoiding a family argument after death is in the best interests of a vulnerable individual both to avoid the associated financial cost and so that they are remembered fondly and with affection and as having ‘done the right thing’.
Although not decided by the courts, press attention was drawn to the issue in 2018 when wealthy aristocrat Charles Rogers died intestate. His family had lived in the 1,536-acre Penrose Estate between Helston and Porthleven in Cornwall for generations. The estate had been gifted to the National Trust in 1974 with a 1,000 year lease in return for the family to be able to continue to live there. John Aldard Rodgers, a careworker, had suspected from an early age that he was Charles Rogers’ son but was unable to get Mr Rogers Snr’s consent during his lifetime to a DNA test. After his death this was permitted, and his parentage was proved and he became the sole beneficiary of the estate (estimated to be worth £50M) under the statutory intestacy provisions.
Last year the issue of using DNA testing to determine parentage hit the headlines again when the Belgian King, Albert II, was order by the courts to take a DNA test. The results revealed that he had fathered a child during an extra marital affair in the 1960s. Delphine Boel had been fighting through the courts for 6 years to establish Albert was her father. Albert vigorously defended the claim and resisted DNA testing but finally agreed to provide a saliva sample after the courts threatened to fine him 5,000 euros per day for every day that he refused. With prescriptive heirship rules in Belgium for the benefit of children, the positive results of the DNA test will entitle Delphine to a share of his substantial estate.
Niel-Moir v Freeman
In this case, Colin Birtles died intestate leaving two daughters Janice and Lorraine. In accordance with the statutory intestacy provisions they stood to inherit the estate equally between them. However, Janice alleged that Lorraine was not the deceased’s biological daughter which, if correct, would have meant that she inherited the whole of the estate herself.
She told the court that her father had told her this was the case during his lifetime, producing various witness statements from others in support. Lorraine defended, stating that she was born during the period of the deceased’s marriage to her mother (raising the common law presumption of parentage) and he was named as her father on her birth certificate. After their parents’ divorce he also paid maintenance for her until she was 16 years old. She said the allegations were ‘nothing but gossip and hearsay’. She refused to consent to DNA testing.
The court had to decide whether they had the authority to order that DNA testing should be carried out. There was no clear legal authority.
The judge did not go so far as to compel it but made an ‘unless’ order requiring her to either submit to the test or the court would draw inferences from her refusal.
DNA testing can be useful in other ways and not just to resolve estate disputes after death. In the case of Anderson v Spencer in 2018 the deceased had had bowel cancer, which could be hereditary. Therefore, the applicant wanted to establish his parentage as he was advised that if the deceased was his father, he should undergo a colonoscopy every two years. The Court of Appeal agreed with the High Court that it could.
In 2016, the Privy Council in the case of Re Baronetcy of Pringle of Stichill held that DNA evidence collected for a family research project could be used to resolve a Scottish succession dispute.
Human rights issues
There are human rights issues in all of these cases. Article 8 of the Human Rights Act 1998 protects our privacy and our family life. Does this extend to privacy over parentage? There is not much Strasbourg case law on the point. A case in Switzerland in which the Swiss Supreme Court had ordered that the body of a deceased person was to be exhumed for DNA testing was challenged and the court held that the right to privacy under Article 8 could not prevent DNA testing of a deceased person to establish parentage. (The Estate of Kresten Filtenborg Mortensen v Denmark).
This was also considered in Nield-Moir v Freeman and interference with Lorraine’s human rights was considered justified as a ‘means of protecting the public interest in the accurate resolution of resolving inheritance disputes’.
In Re Bagguley, the Article 8 rights of each of the adults contending paternity was considered, as opposed to the rights of P. The judge considered that P would have wished to protect the basic human rights, conferred by Article 8, of each of these adults to know their paternity if possible, given he had sought to do so during their lifetime.
Conclusions for practitioners
There is an abundance of developing case law in this area both in the context of the Court of Protection and estate disputes generally. Therefore DNA testing is likely to become more and more commonplace and the courts appear to be more readily inclined to order where consent is not forthcoming. With increasingly complex family structures, the propensity for these sorts of cases is only set to continue.
The tests are highly accurate, are generally quick and painless, with no health risk, and can be done simply by way of a saliva sample. They are relatively low cost, especially if compared to trying to prove parentage by, for example, the production of witness statements and other evidence.
For advisers, clients should be encouraged to use the available scientific tools as cases could then be resolved with more certainty and at an earlier, possibly even pre-action stage, because early testing can avoid the costs, delay, stress and risk of litigation. In the future, it is feasible that if a party refuses early testing then they are likely to face the risk of costs penalties, as a court may consider that to be as unreasonable as a refusal to mediate which also attracts a costs risk.