Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 15 October 2016.
Peter passes away at the age of 85, leaving a will that appoints his two children from his first marriage, Joan and William, as executors and leaves them the whole of his estate equally.
Whilst married to his second wife, Caterina, she gave birth to Leonardo.
Caterina passed away some years ago.
Leonardo grew up on the understanding that Peter was his father. Leonardo’s Birth Certificate records Peter as his father and Peter’s Death Certificate records Leonardo as one of his children.
Leonardo makes a claim against Peter’s estate, seeking provision by virtue of being a “child of the deceased” who receives nothing under the will.
Joan and William dispute that Leonardo is Peter’s child. They say that Peter made statements to the effect that Caterina became pregnant as a result of “one of her indiscretions” and that Leonardo was an illegitimate child.
They say that Caterina also acknowledged that Peter was not Leonardo’s father and that she “had a love affair with another man”.
On the basis of these statements, Joan and William seek orders from the court that parentage testing be conducted.
The test sought, consists of a DNA sample being taken from cheek cells, with the court noting that a blood test is not necessary and that the procedure is “not particularly invasive”.
Leonardo objects to parentage testing but advances no medical or religious grounds.
The court notes that in the circumstances, there is a presumption that Leonardo is Peter’s child, but that this presumption is “rebuttable on the balance of probabilities”.
The court ultimately orders by way of an exercise of discretion that, in the interests of justice, a parentage test be conducted.
The court does however note that should the parties not participate in the parentage test, that they will not suffer any penalty other than the court’s ability to draw an adverse inference from their failure to participate, when assessing the evidence as a whole.
Watch this space.
