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Mar 2018

Woman ordered to undergo DNA test in Inheritance dispute – unique ruling

In an unprecedented decision, a woman has been ordered by a judge to submit to DNA testing in order to prove whether she is the natural daughter of a man who died without making a will.

There was no dispute that the woman’s mother was married to the deceased when she was born and that he was named as her father on her birth certificate. Prior to the couple’s divorce, they had brought her up as the child of both of them. Following his death, however, the other child of the family claimed that the woman was not his biological offspring and was thus not entitled to inherit any part of his estate.

The woman had refused to undergo DNA testing and argued that performing such a procedure without her consent would amount to an invasion of her bodily integrity and breach her right to respect for her family life and privacy. The test could not in any event provide definitive proof that she and the other child were full sisters.

In ordering her to undergo the test, however, the judge noted evidence that she had told a number of persons during her life that she was not the biological child of the deceased. The proposed saliva test would be quick, painless and risk free and would be much less of a physical invasion than a blood test.

Despite acknowledging that his decision was without precedent, the judge found that the court had inherent jurisdiction to direct that a party to proceedings give a saliva sample by way of mouth swab for the purpose of establishing paternity in a case where paternity is in issue.

The judge noted that the woman might be upset if the test proved that she was not the child of the deceased, but that was outweighed by the benefits of uncovering the truth. If science could be used as a means of resolving the litigation, then it should be. There was no suggestion that the woman would be forced to undergo the test but, if she persisted in her refusal, that would be held against her in the proceedings. She was given 28 days in which to arrange a saliva test by a specialist in forensic genetics.


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