This is part two of a two part article on the various parent and
child relationships recognised in Western Australia in contested
deceased estates, which necessarily involved an analysis of:
the Family Provision Act 1974 (WA)
(FPA), the Administration Act 1903 (WA)
(Administration Act) and the Wills Act
1970 (WA) (Wills Act);
relevant case authority; and
the utility of DNA evidence.
This part of the article will deal with item (c).
Is there a role for DNA?
When the biological relationship between a party (to estate
proceedings) and the deceased is in issue, DNA testing via a simple
non-invasive mouth swab can be of great assistance. However that
presupposes that the party is happy to have such DNA testing
conducted. Often that is not the case.
Assuming at least one party is unwilling to provide a DNA
sample, there are two possible sources of power by which a Court
can compel such provision.
The first is Order 28 rule 1(1) of the Rules of the Supreme
Court 1971 (the Rules). This section provides
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.
The second is the inherent jurisdiction of the Supreme Court
(the Court) to make orders under Order 1 rule 3A of the Rules.
Whether exercising a power under Order 28 rule 1 or Order 1 rule
3A, there is a strong discretionary element involved. The cases in
this area show just how hard the exercise of that discretion can
be, particularly in light of fundamental human rights.
In the 2002 case of McComish v Sharpe1, 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 (also on behalf of her child) to submit to DNA testing.
Master Bredmeyer was satisfied that the Supreme Court of WA had
inherent jurisdiction to exercise its discretion to make the
orders, and that it could also make the orders under Order 28 Rule
1 of the Rules. In his reasons, however, he distinguished between
the position of a child and the position of an adult.
He relied on a 1972 House of Lords decision that held the court
had power to order a child to take a blood test in order to help
determine paternity.2 He then went on to note that the
position is less clear in relation to adults, citing from the
judgment in the House of Lords decision mentioned above. However he
concluded the Court had the inherent power.
It came down to an acknowledgement that the Court could not
compel someone to undergo the test in the sense of holding them
down and taking the test. However they could order that such
test be undertaken, failing which, for example, a stay of
proceedings would occur.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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