There is no doubt that the rapid development of DNA technology
in recent years has had a significant impact on criminal
investigation - crimes can be solved with the use of a simple cheek
swab on suspects and witnesses.
Similarly, in family law, DNA testing can resolve paternity
issues quickly and effectively. Accordingly, Magistrates and Family
Court judges routinely order such tests to be carried out.
However, courts have been slower to order the use of the science
in other civil proceedings, for example claims against deceased
estates, where testing can determine eligibility within Family
Provision Act proceedings.
In Western Australia, four relevant provisions apply when
seeking orders for DNA testing in Supreme Court Family
Provision Act proceedings:
Where there is an intestacy, the Administration Act s12A
provides that among those eligible to claim against the estate is
any child of a deceased who:
can establish "to the reasonable satisfaction of the
court" that they are a child of the deceased; or
whose parentage of the child was admitted by the deceased, or
established (presumably "to the reasonable satisfaction of the
court") during the lifetime of the deceased.
Where a valid will exists, the Wills Act s30 mirrors the s12A
The Rules of the Supreme Court at Order 28 rule 1(1) provide
that should it be necessary to consider the question of the
physical and mental condition of any party, an opponent may serve a
notice on them to submit to a medical examination.
There is the inherent jurisdiction of the Supreme Court to make
orders under Order 1 rule 3A.
In McComish v Sharpe  WASC 96, the Defendant
executors applied under order 28 rule 1 for the claimant and her
infant son - who claimed to be the child of the deceased - to
submit to DNA testing. The deceased had admitted paternity of the
infant on oath, but later expressed doubts to the executors that he
was the father. The mother refused to submit to DNA testing for
both herself and her child.
The court ordered the mother and child submit to testing,
stating that it was entitled to determine the issue on the best
scientific evidence available:"Why should the court decide
a case on the less perfect evidence, when the better evidence can
be obtained relatively cheaply and speedily (and) an order for DNA
may very well achieve the settlement of this case?"
The court was satisfied that it had inherent jurisdiction to
make the orders, but could also have made the orders under order 28
Conversely, in 2003 in a suppressed judgment, the court refused
to order the DNA testing of a woman who claimed to be a child of
the deceased, apparently on the basis that she opposed the orders.
The court subsequently found against the claimant in any event,
there being no other evidence to support her claim.
More recently, in Hallett & Anor v Cottam 
WASC 147, the court was prepared to order DNA testing under its
inherent jurisdiction of a claimant who, it was being argued, was
not a child of the deceased. In that case, no order 28 rule 1
notice had been served by the defendants on the claimant but the
court rejected the claimant's contention that an assessment of
"physical and mental condition" under order 28 rule 1 did
not include the taking of a mouth swab for DNA analysis. The Judge
said: "I am far from convinced that order 28 rule 1 is...
incapable of application to examinations to determine genetic
The court went on to exercise its inherent jurisdiction, and its
discretion in the interests of justice, to require the DNA test,
emphasising its contribution to the resolution of the issues as
well as the lack of any prejudice to the claimant.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).