In the case of Nield-Moir v Freeman (2018), the Court ordered a daughter to take a DNA Paternity test to prove her claim to inherit her father’s estate.
The case concerned the estate of Colin Birtles who died without making a Will in 2013, leaving behind two daughters, Janice Nield-Moir and Lorraine Freeman. Under the Intestacy Rules (which determine who inherits an estate if a person dies without a Will), his two daughters stood to share his estate equally. The estate was relatively small, consisting of a terraced house in Oldham and a small amount of cash.
Mrs Freeman obtained a Grant of Letters of Administration to distribute the estate in the absence of her sister, who had lived in Australia for many years. However, Mrs Nield-Moir insisted that the Grant should be revoked and that a new one be given to her, asking the Court to order that Mrs Freeman take a DNA Paternity test to prove that she was entitled to a share of Mr Birtles’ estate. She alleged that Mrs Freeman was not, in fact, Mr Birtles’ biological daughter. Mrs Nield-Moir claimed that Mr Birtles told various people during his lifetime that Mrs Freeman was not his biological daughter and she provided several witness statements to the Court to this effect. If this were found to be true, Mrs Nield-Moir will inherit the whole estate.
Mrs Freeman defended the claim and referred to the facts that Mr Birtles was named as her father on her birth certificate and that she was born during the period of her mother’s marriage to Mr Birtles. She relied upon a common law presumption of legitimacy of children born during the currency of the marriage and argued that the allegations were nothing but ‘gossip and hearsay’.
A key issue in the case was whether the Court had jurisdiction to order DNA tests to be carried out, due to an absence of any clear statutory authority and case law in this area.
The Court agreed to grant the order for testing, accepting that it had an inherent jurisdiction to order DNA testing and that ‘if science can help, then it should’. There was no suggestion that Mrs Freeman would be forced to give samples for DNA testing, however it was noted that, should she continue to refuse to provide the sample, the Court would draw an adverse inference against her case. Should it transpire that Mrs Freeman was not a biological daughter, she will not be entitled to a share of the estate under the laws of intestacy and must look to the Inheritance (Provision for Family and Dependants) Act 1975 for discretionary relief.
The case is a further demonstration that the Courts are willing to control evidence and recognise that scientific reports play a part in modern litigation. An order for the provision of DNA testing is a useful and practical step in the process (although likely to be expensive), particularly where it could lead to a resolution to the case. The case also highlights the importance of making a Will. If you do not have one, or if your Will is incorrectly drafted or executed, there is a possibility that your assets will not go where you intend.
Should you have any queries regarding a similar matter then do not hesitate to contact our Dispute Resolution Department on 01733 888888.
