Tag: DNA testing

14 Dec

A Long-Lost Child’s Right to Inherit From Their Parent’s Estate

Arielle Di Iulio In the News, Wills Tags: , , , , , , , , 0 Comments

On November 25, 2020, the beautiful game lost one of its greatest legends, Diego Maradona. The famous Argentine footballer passed away at the young age of 60 years old, leaving behind millions of admirers around the world to mourn his death.

Maradona also left behind many children. In addition to his eight recognized children, there are supposedly at least two others claiming to be his offspring.[1] The net worth of Maradona’s estate remains to be determined, as does the question of whether he made a Will. Nevertheless, should any opportunistic long-lost children succeed in proving paternity, they may have a claim to a share of Maradona’s estate.

In Ontario, a long-lost child could likewise benefit from their parent’s estate. A child has a statutory entitlement to a share of their parent’s estate where the parent dies without a Will. Pursuant to Part II of the Succession law Reform Act, those who have a right to inherit on an intestacy include the surviving spouse and the “issue”, or descendants, of the deceased. [2] The courts have confirmed that for the purposes of intestate succession, descendants are restricted to blood relatives (with the exception of adopted children, who have the same rights as a biological child).[3] Thus, any purported child seeking an interest in an intestate estate must prove that they are the biological child of the deceased. If an illegitimate child can establish parentage, then they are entitled to share equally in an intestate estate with those born inside of marriage.

In the case of a testate estate, an alleged child of a deceased person may have a right to any bequest made in the deceased’s Will that is based on parentage. For example, a Will may provide for a gift to the testator’s “issue” or “children”. Unless a contrary intention is included in the Will, any person born outside of marriage who successfully proves parentage could be considered a part of the class of “children” or “issue” entitled to the gift.

Those purporting to be a child of the deceased can prove their familial relationship by presenting documentation like an Ontario Birth Certificate from a Vital Statistics Agency. If this documentation is not available or further evidence of kinship is requested by the estate trustee, DNA testing can also be used. Courts have recognized DNA testing as a reliable, efficient, and effective method of establishing parenthood in probate matters.[4]  Section 17.2 of the Children’s Law Reform Act and section 105(2) of the Courts of Justice Act grant Ontario courts the jurisdiction to order DNA testing to assist in determining a person’s parentage.[5]

Thanks for reading!

Arielle Di Iulio

[1] Joshua Nevett. Maradona: Why the football icon’s inheritance could be messy (December 6, 2020), online:  BBC News <https://www.bbc.com/news/world-latin-america-55173630>

[2] Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 44 to 49 <https://www.ontario.ca/laws/statute/90s26#BK84>

[3] Peters Estate (Re), 2015 ABQB 168 (CanLII), <http://canlii.ca/t/ggmgg>; Child, Youth and Family Services Act 2017, S.O. 2017, c. 14, Sched. 1, s. 217 <https://www.ontario.ca/laws/statute/17c14#BK297>

[4] Proulx v. Kelly, 2010 ONSC 5817 (CanLII), <http://canlii.ca/t/2dkmz>

[5] Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 17.2 <https://www.ontario.ca/laws/statute/90c12#BK23>; Courts of Justice Act, R.S.O. 1990, c. C.43, s.105(2) <https://www.ontario.ca/laws/statute/90c43#BK146>

19 Apr

“DNA and Inheritance”

Hull & Hull LLP Beneficiary Designations, Power of Attorney, Trustees, Uncategorized, Wills Tags: , , , 0 Comments

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?

Thanks for reading,
James Jacuta

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