In Hyslop v. Banks, 2024 BCSC 1848, the plaintiff commenced an action to vary the deceased’s will under s. 60 of British Columbia’s Wills, Estates, and Succession Act, S.B.C. 2009, c.13. In response, the defendants brought an application seeking an order requiring the plaintiff to under DNA testing to determine whether she was the biological daughter of the deceased in the context of a will variation claim.

The deceased had died leaving a will identifying the defendants as his children and naming them as equal beneficiaries. No provision was made for the plaintiff, even though the deceased was named as the plaintiff’s father on her birth certificate, and he treated the plaintiff as his daughter throughout his life.

At the application hearing, the plaintiff argued that she was the deceased’s biological daughter and raised a number of legal and public policy objections to oppose the relief sought by the defendants.

The Court noted first that Rule 7-6(1) and (4) of the Supreme Court Civil Rules provides the authority to order an independent medical examination of a party and the inspection and preservation of property. There were three prior decisions applying these rules under the former Rules of Court in the context of will variation proceedings.

The plaintiff argued that British Columbia’s Family Law Act, S.B.C. 2011, c.25 (the “FLA”) establishes a presumption of parentage where the putative father is identified as such on a child’s birth certificate or where he was married to the biological mother at the time of the child’s birth. The Court recognised that while there is a presumption provided under British Columbia’s FLA, the defendants were merely seeking on this application an order to compel production of evidence that may rebut or help rebut the presumption. There was no requirement for them to rebut the presumption at this particular stage.

The Court also rejected the plaintiff’s argument that ordering a DNA test would open the floodgates of similar assertions in other wills variation cases and defendants in such cases will routinely plead that a plaintiff is not a biological child of the deceased’s testator. The Order being sought by the defendants was based on information obtained by them from people who were now dead. While that information was hearsay, it formed the bases of the affidavits sworn by the defendants and were not simply mere assertions contained in a pleading. Moreover, the defendants themselves had also subjected themselves to DNA testing to prove their biological relationship to the deceased.

Finally, the plaintiff argued that the defendants were seeking an equitable remedy and, since the defendants had deliberately not given the plaintiff notice of the probate application and distributed the estate before the expiry of the expiry limitation period for a will variation proceeding, the defendants had not come to court with “clean hands”. The Court disagreed. The defendants were resisting the plaintiff’s will variation claim by seeking an interlocutory order for DNA testing. The defendants had also repaid an amount to the estate to cover a potential successful claim by the Plaintiff. Their actions ultimately had not prejudiced the plaintiff.

None of the arguments raised by the plaintiff was successful, and the Order ordered the plaintiff to undergo DNA testing and submit a sample to a lab for the purpose of analysing her biological relationship to the deceased.

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