For most people, I would imagine that the words “DNA testing” evokes the family law or criminal law contexts. However, a recent decision coming out of Nova Scotia involved DNA testing in an estate litigation dispute.
The case is Miller v. Staples Estate (2006), 25 E.T.R. (3d) 303 and involved a fight between sisters over their deceased father’s estate. Their father had died intestate. The plaintiff daughter commenced an application for a court order requiring her sister to provide a DNA sample to test for paternity. Although the sisters shared the same mother, the plaintiff challenged her sister’s entitlement to a share of the deceased’s estate on the basis that the deceased was not her biological father. The plaintiff argued that Nova Scotia’s Civil Procedure Rules, specifically Rule 22, provided the court with the authority to order DNA testing
The evidence showed that the challenged sister had always considered herself to be a daughter of the intestate and that he had always treated her as his daughter. The challenged sister had been born during the marriage, which brought into play the presumption of legitimacy. Given the evidence, Nova Scotia’s Supreme Court held that this was not a case for DNA testing. The challenged daughter had always been treated and considered a daughter of the deceased. This was not a case of the challenged daughter appearing out of the blue, claiming to be a long-lost child.
Regarding its authority to order DNA testing, the Supreme Court held that the Rule 22 should not be used by heirs-at-law to automatically require that their siblings undergo DNA testing to prove paternity. Furthermore, although the court has inherent jurisdiction to order DNA testing, such discretion should be exercised sparingly. The facts of the present case did not merit an exercise of such discretion.
Nova Scotia’s Rule 22 is similar to Ontario’s Rule 33, which provides for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding. Based on my review of the case law, Ontario’s Rule 33 has largely been used in personal injury actions and paternity disputes in the family law context. I did not come across any reported cases of estate disputes where Rule 33 was invoked.
Given the decision in Miller v. Staples Estate, I would warn a disgruntled or greedy sibling in Ontario from trying to use Rule 33 to automatically knock off other ‘alleged’ siblings, whose paternity may be in question, from sharing in an intestate estate.
Have a great day!
Bianca La Neve