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“If science can help, it should” – woman ordered to take DNA test to solve inheritance row

Science has been called as an expert witness to decide whether a woman is really the biological daughter of a man who died without making a Will and thus eligible to claim half his estate.

In a legal first, a judge in Bristol has ordered Lorraine Freeman to take a DNA test to prove she is the daughter of Colin Birtles after the woman brought up as Lorraine’s sister alleged she’s not actually related to him at all.

The judge commented: “This sad litigation should be brought to conclusion, one way or the other, as soon as practicable. If science can help, then it should.”

Although Lorraine can’t be forced to have the saliva swab test, the judge said the court would be able to draw an ‘adverse inference’ if she didn’t comply.

Background to the case

Colin Birtles’ wife, Veronica – who he later divorced – gave birth to Janice (Nield-Moir) in 1961 and Lorraine the following year.

Lorraine’s birth certificate named Birtles as her father, he paid maintenance for her until she was 16 and after the divorce, he brought both her and Janice up as his own.

In 2007, Janice moved to Australia and in 2013, when Mr Birtles died, Lorraine successfully applied for letters of administration to distribute his modest estate, without contacting Janice.

According to the rules of intestacy, which apply when someone dies without a Will, the estate should, on the face of it, have been divided equally between the two sisters but when Janice found out, she issued a claim for herself to be appointed as estate administrator at the same time as alleging that Lorraine was not Mr Birtles’ biological daughter anyway.

She claimed she’d collected a number of witness statements from third parties to the effect that Mr Birtles had said as much to several people in his lifetime.

Lorraine responded by saying this was nothing but ‘gossip and hearsay’ and refused to take a DNA test leading to Janice – who said she would also be tested to show whether she and Lorraine were full or half sisters – taking the decision to seek a court order.

What the judge decided

After taking extra evidence regarding the human rights aspect of the case, the judge ordered the test should go ahead.

He said: “Stepping back from taking samples by force (which the applicant does not seek), I do not see why, in principle, a person cannot be ordered to consent to a mouth swab saliva test for DNA testing purposes, in the same way as a search order requires a person to consent to a search of premises and the seizure of items falling within the scope of the court order.

“In a case such as the present, where an important issue is one of parentage, where DNA testing is likely to produce a robust conclusion one way or the other, and where the testing nowadays requires merely a saliva sample by mouth swab by one or more of the parties, the court may well have an inherent jurisdiction to order a person to consent to giving a sample so that it may be DNA tested.”

For help and advice about probate disputes, please contact our specialist disputes team at Wards Solicitors by phone or by popping into one of our 11 local offices.

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