DNA Testing in Estates Matters

March 14, 2012 Hull & Hull LLP Litigation Tags: , , , , 0 Comments

Yesterday, I blogged on DNA testing in relation to estate matters.

Practical difficulties can arise in obtaining DNA tests in estate matters, where a DNA sample of the deceased may be thought to not be readily obtainable. 

In Proulx v. Kelly, 2010 ONSC 5817 (CanLII), which I blogged on yesterday, the problem of obtaining a sample from the putative father, since deceased, was not an issue as the court noted, without giving particulars, that a sample from the deceased existed. 

Similarly, in Nandwani v. Nandwani et al, 2011 MBQB 231 (CanLII), samples from the deceased were said to exist, without an explanation as to how or why.

In Turner v. Irwin, 2003 MBCA 146 (CanLII), there was a request for the release of tissue and blood samples of the deceased “that for some reason have been retained by a hospital.”

In Miller v. Staples Estate, 2006 NSCA 140 (CanLII), the brother of the deceased agreed to provide a DNA sample to assist in determining whether a claimant was a child of the deceased. Counsel agreed that DNA testing with such samples would be determinative of the issue of paternity.

Other options for obtaining DNA samples include obtaining hair samples and fingernail cuttings from a recently deceased person. It is also possible to obtain DNA samples from a toothbrush, comb, dentures, or cigarette butts.   However, the quality of the sample will vary depending on a number of factors, and the reliability of the test will reflect the quality of the sample. Still another option is to obtain bone and/or dental samples from an exhumed body. (See DNA Paternity Test website.)

In the later case, compliance with the Cemeteries Act will be required. 

Thank you for reading.

Paul Trudelle – Click here for more information on Paul Trudelle

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