Cross Practice Insights Part 2: Disputes About Parentage in Family and Succession Cases

Emotions can run high in legal disputes, particularly in cases involving succession and inheritance, as well as in a family context. In part 2 of our five-part cross-practice insights series, we explore what happens when allegations are made about parentage (more often than not, paternity) and what can be done about it.

Trusts and Estates Disputes

In England & Wales, when someone dies having made a Will during their lifetime, the Will sets out who should benefit from the deceased’s estate. If there is no Will, the deceased’s estate will be distributed in accordance with the ‘intestacy rules’ (which are set out at s.46 of the Administration of Estates Act 1925). In either case, if the beneficiaries are relatives of the deceased, the Personal Representatives (those who are legally responsible for managing the deceased’s estate) need to be able to identify who those relatives are, particularly if they are referred to as a group such as ‘my children’ or ‘my brothers’, rather than listed by name. 

This is usually straightforward and not controversial, but disputes can arise which are centred around whether a particular person is in fact a relative of the deceased. The following fictitious example demonstrates how a dispute might arise:

• Mr A died without making a will. He had no surviving spouse, but had two surviving children.
• According to the intestacy rules, his estate is to be split between his children.
• Child 1 alleges that Child 2 is not in fact Mr A’s biological child, and therefore is not entitled to inherit any of Mr A’s estate.
• Separately, Child 3 appears, alleging to be a biological child of Mr A, and therefore entitled to a share of his estate. 

The above scenario could also arise where Mr A had made a will, leaving his estate to his ‘children’ (or, in another example, his ‘siblings’) and a challenge arises as to a particular person’s status as a child or sibling. The same questions can also arise in the context of a trust. For example, a discretionary trust might include the settlor’s ‘children’ or ‘siblings’ as a class of potential beneficiaries. In either case, if there is a dispute as to whether a person falls into one of those particular classes, it needs to be resolved.

Carrying out a DNA test is the first place to start, presuming it can be done by agreement. A DNA test can be used to either (1) prove that two people are definitely not related or (2) show the probability that two people are related. Blood or saliva samples can be tested and the parties don’t need a lawyer to arrange a test. If the results are to be used as evidence and are going to be relied on in a legal context or in court, it is important to arrange the testing through a government accredited testing laboratory. Otherwise, the results won’t be accepted in court. In the above scenario, a sample from Mr A would not be required. Rather, all three children would provide a sample for testing and the results would establish the probability that they are children of the same father.

A DNA test is an easy and relatively quick and inexpensive way of getting evidence that can help to resolve a dispute, but it requires all of the relevant parties to consent to providing a sample for testing. So what happens if one or more of the parties won’t agree?

The Family Law Reform Act 1969 gives the court the power to require DNA testing to determine parentage. However, the Act only applies where the question to be determined is whether a party to proceedings is the father or mother of a child. This is explored further below. In the scenario suggested above, the father (Mr A) would not be a party to proceedings because he has died.

Instead, the court has previously ruled that it has the inherent jurisdiction to direct any party to provide a sample for DNA testing for the purposes of establishing paternity. It did so in the case of Neild-Moir v Freeman (2018) EWHC 299 (Ch) (also known as Re Birtles (Deceased)), where paternity was in issue. In that case, the claimant and defendant were half-sisters, having been born to the same mother. The claimant denied that the defendant was the biological child of her deceased father, which was relevant because he had died intestate. The defendant alleged that she was the biological child of her father, but refused to submit to DNA testing and the claimant sought an order requiring the defendant to submit to testing.

The judge determined that he could make the order sought, and did so. In weighing up whether to make the order he considered the severity and invasiveness of the testing and any health risks to the donor (ie the defendant). He also considered risks to the mental health of the donor, and human rights considerations (including the right to private life and the right to privacy). The judge emphasised that the evidence would be valuable, if not determinative, and felt it would be a waste of resources to go through a trial involving extensive narrative evidence when DNA testing was available. The judge also considered whether the application was a fishing expedition (and concluded it was not) and highlighted that there were a number of different orders the court could make if the defendant continued to refuse to submit to testing (which included drawing adverse inferences or making an ‘unless order’ striking out the defence if the order was not complied with).

Based on that case, in the above scenario, it would be open to one of the parties to apply to the court for a direction that a sample be provided by whichever party does not agree. However, the court cannot order that a party should have a sample forcibly taken; a party can still refuse, and the consequence of failing to comply with a direction of the court might be that the court would draw adverse influences as a consequence of a party’s failure to comply with the direction.

For the purposes of considering whether an application of this type would be granted, the following would be relevant:

• The type of DNA testing to be undertaken and how invasive the testing would be. A blood test isn’t generally considered very intrusive, but the court did note in Re Birtles that a saliva swab is much less intrusive (which goes to any impact on the respondent’s physical health);
• Any impact on the respondent’s mental health and whether there are any specific mental health concerns that have been raised or that the applicant is aware of; and
• The availability (or absence) of other supporting evidence which supports the applicant’s view that the respondent is / is not the biological child of the deceased.

Family Disputes

Similar issues can also arise in a Family Law context. This time the facts might be as follows:

• Mr and Mrs B are divorcing (or separating, in the case of unmarried couples, as it is open to an unmarried parent to apply for financial provision on behalf of their child).
• Mrs B is seeking financial support from Mr B for their child as part of the divorce settlement (or as a free-standing application for financial provision under Schedule 1 of the Children Act 1989).
• Mr B alleges that he is not the child’s biological father and is therefore not financially responsible for the child.

Alternatively,

• Ms C has a child with Mr D.
• Ms C wants to register her child’s birth and include Mr D as the child’s father on the birth certificate.
• Mr D disputes that he is the child’s biological father.

As in the trust and probate context, the dispute as to paternity needs to be resolved. The process to follow is similar to that outlined above. A direction will be sought for parentage to be determined by way of a paternity test. Samples (usually saliva) will be taken from the alleged father and the child. The mother’s DNA is not necessary but is sometimes taken for a belt and braces approach. A government accredited testing laboratory should be instructed to carry this out in Family Court proceedings. The identity of the testing facility should be agreed between the parties (one party might put forward three facilities from which the other party selects one). As in probate cases, if the alleged father fails to submit to a DNA test then adverse inferences will be drawn (again, a sample cannot be forcibly taken). This negates the risk that an alleged father simply buries their head in the sand – the court proceedings do not grind to a halt and orders can be made on the assumption that the alleged father is the biological father and thus financially responsible – the premise being that he was given the opportunity to refute this fact.

Once results are received then, if positive, the proceedings continue as normal. If negative, the proceedings will cease.

In the second scenario described above, the same DNA testing process applies but in terms of practical steps, the likelihood is that the alleged father will be seeking a paternity correction to the birth certificate (in cases where a mother has already included their name on the birth certificate before the DNA test has been carried out). If paternity is not proven, the alleged father’s name will be removed.

Conclusion

Parentage disputes can by their nature highly contentious and evidently emotive. The processes described above are designed to provide guidelines to clients in need of clarity. Once parentage has been established, matters can proceed towards, hopefully, a quicker resolution for all parties involved.

Further information

If you have any questions regarding this blog, please contact Kate Salter or Colleen Hall.

About the authors

Kate Salter is a Senior Associate in the Dispute Resolution team with a wide range of litigation experience, and with particular expertise in Wills, Trusts and Inheritance Disputes.

Colleen Hall qualified as an Associate in the Family team in 2017. She is a fluent French speaker, and advises on a range of aspects of family law issues.