A recent decision from the British Columbia Supreme Court, Barnes Estate v. Barnes, contemplates the issue of DNA evidence when determining who inherits under a will.  This case concerns the distribution of the estate of Maymie Barnes who died with a last will and testament that provided that her estate be divided equally between her two sons, or, if they are not living at her death to be divided “in equal shares per stirpes” between the issue of her sons.

Both of her sons, Ernest and Kenneth had predeceased her leaving two children each. If Maymie’s estate was to be divided in accordance with her last will and testament then it would be distributed equally amongst her four grandchildren (Ernest and Kenneth’s children). However, one of Ernest’s children, Eric, disagreed with this distribution as he asserted that Kenneth’s children were not his biological children as he had heard that Kenneth was sterile.  He argued that if Kenneth’s children were not his biological issue, then they should not inherit under Maymie’s will as they would not come within the definition of “issue”.  Therefore, Eric’s share of Maymie’s estate would double.

Through a series of court applications, Eric obtained DNA evidence from Kenneth and one of Kenneth’s children, which determined that that child was not Kenneth’s biological offspring. The other child of Kenneth’s refused to submit to DNA testing.

The court reviewed the interpretation of Maymie’s will and subsequent distribution of her estate from what they determined to be Maymie’s intention at the time she wrote it.  Kenneth’s children had always been treated as though they were Kenneth’s.  Their mother had sworn an affidavit saying that they were Kenneth’s biological children.  The court came to the conclusion that Maymie would have intended for Kenneth’s children to share in her estate upon her death if Kenneth was not alive.

After coming to the conclusion that it would have been Maymie’s intention to provide for Kenneth’s children in her will, the court then looked at the DNA evidence.  Unsurprisingly, based on the facts, the court discredited the DNA evidence as there were flaws in how it was obtained.  For example, there was no clear evidence as to the chain of possession of Kenneth’s DNA prior to it being tested.

The new Wills Estates and Succession Act  (coming into force on March 31, 2014) will provide more certainty on who will be considered “issue”.  In this case, the Court determined that Maymie would have intended for her estate to be distributed equally amongst all of her grandchildren and the court ordered that her estate be divided equally between all four of the children of Ernest and Kenneth.