Tag: DNA testing
The title of a seminar last week on genealogical research by a group in Toronto caught my interest and I was happy that I attended. Ron Wencer has been a speaker at many meetings of genealogical societies over the years and his talk this time was entitled: “My completely new Grandfather: the DNA Gods Giveth, and they Taketh Away”. His talk reminded me of how advancing technology changes society and how society and laws adapt in response. You only have to do an internet search to find numerous recent examples of DNA testing through outfits like Ancestry DNA or 23andme to see how some lives were changed by DNA test results. Among the stories you will find are those locating previously unknown siblings, children, or other family members that have resulted in everything from happy reunions to divorce.
In the case of Ron Wencer, he had begun researching his own family history over twenty years ago. He knew that his family was originally from Poland and that they had immigrated to New York, living in the Maspeth neighbourhood of Brooklyn. But his grandparents on his maternal side were initially a mystery. He was eventually able to find information on them. Both Michal Silakowski and his wife Marianna had died in the 1930s before their first grandchild was born, and not much family history had been transmitted, but the village that they were from was located.
Ron Wencer recently took a DNA test and allowed the results to be posted on the internet. After then connecting with other DNA test results and analyzing the results of first cousins, second cousins and so forth, and then going back up the family tree he came to a startling conclusion. Although all of the earlier research established that his grandfather was Michal Silakowski, the DNA genetically established that it was not possible that Michal Silakowski was the biological son of his Silakowski parents, the Silakowski great grandparents. One of the explanations is that perhaps in infancy this young boy was cared for by the Silakowski family. Such informal adoptions would have been common back then if there was a death of the mother during childbirth or for other reasons.
This however, raises an interesting question on tracing missing heirs in estates. This tracing can be required where there was no will, or where there was a will that resulted in an intestacy due to the predeceasing of a beneficiary or otherwise. It has usually been accepted that a Certificate of Birth from a Vital Statistics Agency showing the family connection is proof of the right to inherit. But, are we perhaps moving into new territory in the future, where DNA testing may be involved and may then “Giveth or Taketh Away” an inheritance?
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As speculation starts to appear in the media about the estate of the late Muhammad Ali, who passed away this past weekend, the typical estate questions emerged in the press: who will inherit his estate and how much do they stand to benefit?
When a celebrity such as Muhammad Ali (or Prince) passes away it is always an important reminder of estate issues that may arise, particularly when blended families are involved. For instance, my colleague Laura Betts recently revisited the issue of mirror or mutual Wills and what can happen when the surviving spouse changes their Will after their spouse has passed away.
Another issue that comes to mind are the possible claims that could be made against an estate by a long lost child.
In Ontario, any person appearing to have a financial interest in an estate may make an application to the court under the Rules of Civil Procedure seeking the court’s direction with respect to the estate.
Where a person claims to be a child of a deceased, section 8 of the Children’s Law Reform Act (the “CLRA”) imposes a rebuttable presumption of paternity in limited circumstances. In the alternative, the court has the jurisdiction pursuant to s. 10 of the CLRA to order DNA testing so that a finding as to the parentage of the applicant can be made.
Depending on the circumstances of the case, once the applicant is found to be the biological child of the deceased, a number of claims could potentially be asserted. For example, if the deceased died testate, the wording of his or her Will could give rise to an interpretation issue. Alternatively, in the case of an intestacy, the biological child may assert their statutory entitlement to the estate. In both instances, however, if the biological child falls within the scope of Part V of the Succession Law Reform Act then a claim for dependency may also be asserted.
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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  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