Generally speaking, any person in British Columbia can bequeath their assets and property to whomever they wish through the terms included in their will. However, the testator’s wishes (the person who made the will) may be amended post-death in certain defined circumstances, including when a spouse or child of the deceased seeks variation of the will because they were not adequately provided for under the terms of the will.
Of course, such a claim can only be made by a person known to be a spouse or child of the deceased to avoid circumstances wherein complete strangers to the deceased seek to share in the estate. In terms of proving a parent-child relationship, adoption may be proven by providing documentary evidence of the adoption, while a biological relationship may be established through DNA testing.
But can the courts order someone to take a DNA test? And in what circumstances? In this blog, we explore the thorny issue of using DNA to prove a parental relationship to access the right of a child to seek a variation of a will.
Testator Bequeaths Assets to Four of Five Children
The recent case of Hyslop v Banks illustrates the difficulties that may arise when a person seeks to avail themselves of the legal right to seek a variation of a will based on a parental relationship. In this case, the deceased had left a will that named his four children, born to three different mothers, as equal beneficiaries of his estate. Each of the four children was identified by name in the will.
The plaintiff in this case, who is the sister of one of the named beneficiaries (born to the same mother) and who was not named as a beneficiary of the deceased’s estate in any capacity and was not included as one of the testator’s four children, asserted that she was the biological daughter of the deceased. The deceased is named on the plaintiff’s birth certificate as her father, and he treated the plaintiff as his daughter throughout her life. The plaintiff believed herself to be the plaintiff’s biological daughter and, for this reason, intended to seek a variation of the deceased’s will to include herself as a beneficiary of his estate.
The four defendants in this case are the children named in the deceased’s will, to whom equal shares of the estate had been bequeathed. Following the death of their father, the two children, named executors of the estate, undertook to distribute the estate according to the wishes stated in the will. However, they undertook such distribution without notification to the plaintiff and before the deadline had passed for bringing a claim to vary the will. As such, the plaintiff commenced a claim to vary the will. The defendants contended that the plaintiff is neither the biological nor adoptive child of the deceased and, for that reason, did not have standing to bring such an application. The defendants further sought to have the plaintiff take a DNA test to prove that she is not, in fact, a biological child of their father. The plaintiff resisted this request on the grounds that there was insufficient evidence to support forcing her to take a DNA test.
Who Can Apply to Vary a Will
In British Columbia, any spouse or child of a deceased person may seek a variation of the terms of a will under section 60 of the Wills, Estates and Succession Act (WESA) if the will does not, in its final iteration, make adequate provision for them. Importantly, the BC Court of Appeal has determined that the term “children,” as used in section 60 of the WESA, includes only biological or adoptive children and does not include any person with whom the testator had a “parent-like relationship.”
Can the Courts Compel Someone to Take a DNA Test?
In terms of the authority to compel someone to submit to a DNA test, rules 7-6(1) and (4) of BC’s Supreme Court Civil Rules dictate, respectively, that a court of the province may order that any person whose physical or mental condition is in issue undertake a DNA test and that a court may order a person to undergo a DNA test if the court considers it expedient or necessary to do so to ensure that the evidence before the court is as complete as possible.
However, sections 23 and 26 of BC’s Family Law Act dictate that a presumption of parentage arises when a specific person is identified as the father on a child’s birth certificate and that person was married to the biological mother of the child at the time the child was born, and that any child of a couple whose existence is not attributable to assisted reproductive methods is presumed to be the child of the mother and the person married to the mother at the time of the child’s birth. In this case, the plaintiff argued that because the testator’s name was on her birth certificate and the testator had been married to the plaintiff’s biological mother at the time of her birth, it is presumed that he is her biological father. As such, she contended that she should not have to submit to a DNA test to prove her parentage, as it was presumed.
Should the Plaintiff in this Case Be Ordered to Submit to a DNA Test?
Because the plaintiff made a claim under section 60 of WESA on the basis that she is the biological child of the testator, the identity of her biological father is relevant to the claim. Establishing the paternity of the plaintiff could provide a complete answer to the claim as, if the plaintiff is not the biological daughter of the testator; she is barred from bringing a claim under section 60, as that provision only permits spouses and biological/adoptive children to make a claim.
The court rejected the plaintiff’s position that the identity of her father should be presumed in accordance with the Family Law Act because the defendants had “raised a sufficient evidentiary foundation to justify an order for a DNA test,” largely because the plaintiff’s sister, who was named in the will as one of the testator’s children, had undertaken a DNA test and learned that the testator was not, in fact, her biological father. Given that he was not the father of the plaintiff’s sibling, the court was persuaded that there was even more reason to have the plaintiff undertake a DNA test to establish her paternity.
As a result, the court ordered the plaintiff to undertake a DNA test in order to establish whether the testator was, in fact, her biological father.
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