Australia: Inheritance and the benefits of DNA testing

Last Updated: 14 June 2019
Article by Danielle Verde and Gerard Basha

DNA (deoxyribonucleic acid) is the chemical compound that makes up genes within chromosomes and is the basic material of heredity. More than 99 per cent of human DNA is identical from individual to individual.

DNA is often used to determine medical history, paternity and to solve crimes when blood, skin, or other bodily samples are collected at crime scenes.

DNA is becoming increasingly important to assist with inheritance disputes and to facilitate the administration of deceased estates. DNA testing has strong benefits and can be used to confirm familial links and to identify bodies where there has been bad decomposition.

A prudent and well informed executor, administrator or trustee of a deceased estate (trustee) can use DNA testing to assist to resolve inheritance disputes or estate administration problems.

How to utilise DNA testing

A verified legal DNA test can assist to resolve inheritance disputes or estate administration problems. The test can be ordered by a court or can be undertaken with the informed consent of all relevant parties. The testing involves a sample collection process by an independent third party such as a doctor or nurse (also referred to as the chain of custody process).

A prudent trustee aware of possible inheritance issues such as missing beneficiaries or disputed paternity should ensure a DNA sample is taken from the deceased shortly after death. This can be tested against DNA of living people (usually taken by a mouth swab) so that the DNA testing can be used to prove the biological relationship between alleged relatives.

The DNA test can cost about $500 and the results can be known in under two weeks.

Recent cases

In one of our recent matters, DNA testing was used with the consent of all family members. The testing confirmed that a child living in Thailand was the daughter of a person who died intestate in Queensland and was so entitled to share in his estate on intestacy.

Another recent matter involved a missing son who was entitled to a significant inheritance of over $2 million from his mother's estate. He disappeared in November 1990 and had not been seen or heard of since. His mother died in 2005. The prudent trustee of the mother's estate arranged for a DNA sample to be taken from the mother in case it would assist with identifying her missing son should he be found.

The police missing persons unit conducted extensive checks, searches and enquiries of family and friends from 1990 to 2018 but were unable to locate the missing son. There was also an extensive media campaign that failed to provide any leads.

In 2018, good police work identified a body found in late November 1990 at the bottom of a cliff as a possible lead in locating the missing son. The body was found 15 days after the son went missing. The body had part of the head from the bottom jaw up missing. However, the police were given approval to obtain wax tissue blocks taken from the body. They were tested against the mother's DNA. A mitochondrial DNA profile from the body was the same mitochondrial profile as the deceased mother. The source of the sample could not be excluded as originating from the same maternal lineage. The body found at the base of the cliff was the missing son.

The result of this DNA testing will allow the hard working and long suffering trustee to finalise the administration of the mother's estate some 14 years after she died.

A case relying on the result of DNA testing was Public Trustee v Arnold [2004] NSWSC 127. A person claiming to be the father of a child joined in registration of the birth of the child. The father later participated in DNA parentage testing which resulted in a report excluding him as the father with 100% certainty.

In Kohari v NSW Trustee & Guardian [2017] NSWSC 1080 a family provision claim was made by a 38 year old man against the estate of a person that he claimed to be his father. He had no contact with his father since his parents separated when he was 18 months old.

The executors of the father's estate disputed that the 38 year old man was the deceased's son. DNA testing was proposed but it was resisted by the man and his mother. Despite the objections, the Court ordered DNA testing. The DNA test established that the man was in fact the son of the deceased.

The magic of DNA testing is also clearly evident in its use to conclusively identify the skeleton of Richard III of England in 2013 which led to his reburial in March 2015.

In 2019, DNA paternity testing was the subject of Court focus in the late Reg Grundy's estate. A man claiming to be a long lost son of the late tv mogul made a claim on the alleged $900 million estate with his claim depending on paternity test results.

Conclusion

Prudent trustees need to be aware of and advised about the benefits of DNA testing to assist to resolve inheritance disputes or estate administration problems.

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.

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