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To DNA Test Or Not To DNA Test?

Reasons to choose Wilson Browne

The recent case of Nield-Moir v Freeman [2018] EWHC 299 (Ch) brought into focus the difficult question of DNA testing in inheritance disputes.

Such a topic comes up more frequently than you may think with families sometimes having to grapple not only with the loss of a loved one but the possibility of including or excluding those who argue that they are part of the family.

The question of DNA testing is, however, fraught with human rights considerations and arguments about whether a Court can “force” someone to undergo a DNA test.

In this case Janice Nield-Moir and Lorraine Freeman were the daughters of the deceased’s late wife Veronica, being born in 1961 and 1962 respectively. Janice, however, denied that Lorraine was the biological daughter of the deceased and the two had been estranged for many years.

When the deceased died intestate in 2013 the intestacy rules provided that his Estate would pass to his biological children (since he was divorced by this time from Veronica) and if more than one, in equal shares. Janice therefore sought a declaration from the Court that Lorraine was not entitled to any interest in the Estate.

Janice sought an order that Lorraine undergo DNA testing, Lorraine resisted the application.

In this case, the Court determined that Janice’s application should succeed.

However, those reading this case as an Order by the Court that Lorraine undergo the DNA testing should look carefully at the Judgement. In fact, Lorraine was not to be forced to undergo DNA testing but given a choice.

Either she had the DNA test to allow the Court to make an informed decision on the question before it or the Court would be “at liberty, on the trial of the claim, to draw an adverse inference” (HHJ Matthews).

For any advice on challenging a Will contact our Specialist Team.

Jennifer Laskey

Posted:

Jennifer Laskey

Partner

Jennifer is a Solicitor and Partner with 21 years experience advising clients in relation to litigated Will disputes. A Legal 500 recognised lawyer, Jennifer is a full member of ACTAPs and has resolved multi-million pound disputes for clients in Courts across England.