DNA Testing in Estate Matters Revisited

February 1, 2007 Hull & Hull LLP Ethical Issues Tags: , , , 0 Comments

Last year, I blogged on a Nova Scotia case involving DNA testing in an estate litigation dispute:Miller v. Staples Estate (2006), 25 E.T.R. (3d) 303. The case centered on a fight between sisters over the estate of their father, who had died intestate. One sister commenced an application for a court order requiring the other sister to provide a DNA sample to test for paternity. She claimed her sister was not entitled to a share of their father’s estate as she was not the father’s biological daughter. The plaintiff sister had 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 intestate had always treated the challenged sister 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 had held that this was not a case for DNA testing. The 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.

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. In my last blog on this subject, I had warned disgruntled or greedy siblings in Ontario away from using Rule 33 to automatically knock off other ‘alleged’ siblings, whose paternity may be in question, from sharing in an intestate estate. As it turns out, I blogged and warned too soon!

The plaintiff daughter in the Staples Estate case appealed the decision denying a DNA test to Nova Scotia’s Court of Appeal (see [2006] N.S.J. No. 522) and won! In what may turn out to be a precedent-setting estate law ruling, the Court of Appeal held that, where there is a clear factual foundation or some plausible evidence that a claimant may not be a biological descendant of an intestate, it is appropriate to order a DNA test. The Court chose science over long-standing case law about the presumption of legitimacy.

While the Court of Appeal rejected the notion that the ruling would unleash a flood of DNA applications in intestate matters, this ruling could become a ‘sword’ for disgruntled/greedy siblings all over the country. Only time will tell…no predictions or warnings from me!

Have a great day!

Bianca La Neve

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