I recently blogged about the growing use of home DNA tests and what impact an unexpected result could have upon your rights as a beneficiary of an estate. While such a blog was from the perspective of an individual who discovered through a home DNA test that their biological father was not in fact the individual they previously believed it to be, and the potential impact such a finding could have upon their status as a beneficiary of their “father’s” estate if their interest was based on their status as a “child”, questions would also emerge in such a scenario if you were the Estate Trustee of such an estate regarding what you should do.
If you are the Estate Trustee of an estate in which a bequest is based on parentage (i.e. an intestacy or a bequest to a testator’s “issue” or “children”), and you discover that one of the beneficiaries has voluntarily taken a home DNA test which revealed that they were not in fact related to the deceased, could you still make a distribution to such a beneficiary? If you have already made a distribution to such a beneficiary, is there a risk that the other beneficiaries could now make a claim against you as Estate Trustee, alleging that you distributed the estate to the incorrect individuals and that they have suffered damages as a result?
In response to whether an Estate Trustee could potentially be liable to the other beneficiaries for historically paying out amounts to a beneficiary who it is later discovered was not actually related to the deceased, it would appear that the Estate Trustee likely would not be liable under such a scenario. In my previous blog I discussed the provisions of the Children’s Law Reform Act (the “CLRA“) which establish a person’s legal parentage in Ontario, and the various presumptions establishing an individual’s father. While sections 13(1) and 14(1) of the CLRA allow the court to make a subsequent different declaration as to a person’s parentage, section 14(2) of the CLRA provides that such an Order “does not affect rights and duties that were exercised or performed, or interests in property that were distributed, before the order was set aside“. As a result, it would appear, arguably, that if an Estate Trustee historically made a payment to an individual based off of parentage, and a subsequent declaration is made by the court that the individual in question was not actually the parent of the beneficiary, the historic payment to the beneficiary could not be put in issue or reclaimed provided that at the time the payment was made the beneficiary was still presumed and/or declared to be the child of the deceased.
The issue of what an Estate Trustee is to do if a payment has not yet been made and they discover that an individual who they previously believed to be a beneficiary is not in fact related to the deceased could be more complicated. In the event that the other beneficiaries who could be affected by the distribution do not unanimously consent to continue to allow the distribution to the individual notwithstanding the results of the DNA test, it is possible that one or all of the other beneficiaries may later bring a claim against the Estate Trustee for negligence, alleging that the Estate Trustee knew about the results of the DNA test before making the distribution and that they have suffered damages as a result of the distribution. To offset such a risk, it may be wise for the Estate Trustee in such a scenario to bring an Application for the opinion, advice and direction of the court pursuant to section 60(1) of the Trustee Act and/or rule 14.05, asking the court to determine whether the distribution may still be made to the potential beneficiary in light of the results of the home DNA test.
Thank you for reading.
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,
On Tuesday, I referred to an article, “Are You Related to This Violinist? If So, You Could Be a Millionaire”, which first got me thinking about the idea of inheritances received from distant (and potentially unknown) relatives who die intestate. Thursday’s blog focused on the use of DNA evidence in establishing and disproving relatedness and how this technology may apply to the context of estate litigation and claims that a party is the next of kin of a person who has died intestate.
Further to yesterday’s post, it is worth mentioning that the Court will not always order a DNA test to establish a family relationship. Earlier this year, in Re Branson Estate, the Alberta Court of Queen’s Bench refused to order the applicant to undergo genetic testing when such an order was sought by the respondent to the proceeding. Both parties asserted that they were the biological sons of the deceased, who died intestate. The respondent raised doubts with respect to whether the applicant was actually related to the deceased. The applicant had produced his birth certificate, which identified the deceased as his father in support of this family relationship, but the respondent alleged that the applicant was the product of their mother’s affair with a man other than the deceased. The Court ruled the hearsay evidence cited by the respondent inadmissible and determined that the applicant and respondent were both entitled to a 50% share in the estate of their father. While DNA testing may be a viable way to dispute relatedness that forms the basis of a beneficiary’s claim against an estate, it cannot always be relied upon where admissible evidence does not raise uncertainty with respect to one party’s relatedness to a deceased family member.
The violinist, Eugene Bergen, whose story is featured in the article referred to in Tuesday’s blog died intestate in 2013 in New York City, at the age of ninety-six and with savings of nearly four million dollars. Bergen played violin for the New York Philharmonic Orchestra and toured Europe with Glenn Miller during the Second World War. Although he left behind an impressive life story, he does not appear to have been survived by a spouse, issue, or any other relatives. As a result, the late musician’s estate is controlled by the Manhattan Public Administrator. City officials are still trying to locate Bergen’s next of kin. Eventually, if a living relative of Bergen cannot be found, the funds will be deposited with the city’s Finance Department. In the last three and a half years, the Finance Department has received over sixty-six million dollars in unclaimed estate funds. The author of the article that appeared in DNAinfo recommends keeping up-to-date genealogical records so that, if we are related to someone like Eugene Bergen, who has left a fortune but no Last Will and Testament or close family to inherit it, we do not miss out on an inheritance.
Have a nice weekend.
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.
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.
We have blogged on DNA testing before.
In Proulx v. Kelly, 2010 ONSC 5817 (CanLII), the court considered whether it would grant a request to obtain a DNA test of the Respondent in order to determine whether she was, in fact, the biological child of the deceased.
In Proulx, the issue was whether the Respondent was the daughter of the deceased. The sister of the deceased contested the claim made by the Respondent that she was the deceased’s daughter.
The Respondent relied upon the “presumption of paternity” set out in the Children’s Law Reform Act. Pursuant to s. 8 of this Act, a person is presumed to be the father of a child in a number of circumstances, including circumstances where:
a. the person is married to the mother of the child at the time of the birth;
b. the person marries the mother of the child after the birth of the child and acknowledges that he is the natural father;
c. the person has certified the child’s birth as the child’s father under the Vital Statistics Act;
amongst other circumstances.
The Respondent argued that the presumption of paternity was not rebutted by the Applicant, and thus a DNA test should not be ordered. The court disagreed with this conclusion. The court held that a paternity test could be ordered under s. 10 of the Children’s Law Reform Act, and that s. 10 stands alone from s. 8, which provides the presumption of paternity. As there was some evidence to bring paternity into question, a DNA test was ordered.
The court also appears to have relied upon the fact that a DNA test is highly reliable. The court stated that it would prefer an outcome based on testing to an outcome based on the contested and contradictory evidence of the parties and other family or community members.
Thanks for reading.
Paul Trudelle – Click here for more information on Paul Trudelle.