Inheriting from Long-Lost Relatives – Part 2

September 10, 2015 Nick Esterbauer Estate & Trust Tags: , , , , , 0 Comments

On Tuesday, I introduced the idea of receiving an inheritance from a long-lost relative who dies intestate.  While the law allows distantly-related next of kin to benefit from a deceased intestate, in reality, practical barriers often present themselves.

When trying to assert one’s position as a very distantly-related next of kin, the challenge may become proving (or, in some cases, disproving) the relationship.  It can be difficult or impossible to establish someone who was not recognized as a close relative of the deceased as the next of kin, absent DNA evidence.

In determining the degree of relatedness of one individual to another, geneticists use math models and averages.  However, when DNA analyses are done, our genetic materials do not always follow expectations based on mathematical trends.  For this reason, DNA test results may be inaccurate or inconclusive, suggesting that two individuals are more or less closely related than they actually are.  What makes the ability to rely on genetic testing more difficult is the fact that fourth cousins (and beyond) often share no more genetic material than that shared with any other member of the population.

Another difficulty that may present itself in determining the relatedness of one person with another who is deceased is that DNA testing requires a sample (such as hair or saliva) from both test subjects.  If the deceased has been cremated, a tissue sample may not exist at the time that the purported family member seeks evidence of their relatedness.

In Ontario, genetic testing can be used to support or dispute familial relatedness within the context of estate litigation.  The Court can order a DNA test to disprove genetic relatedness of a purported beneficiary on intestacy under Rule 33 of the Rules of Civil Procedure, which allows the mental or physical examination of a party whose condition is in question in a proceeding.  In Kelly Estate (Trustee of) v. Kelly, Justice Coats of the Ontario Superior Court of Justice granted leave for DNA testing of one party, an alleged daughter of the deceased, stating that “DNA testing is a highly reliable method of determining parentage.”

Thank you for reading.

Nick Esterbauer

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