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The impact of DNA testing on wills and estates

The proliferation of online DNA kits is raising issues in estate disputes, Cornwall wills and estates lawyer Michele Allinotte tells AdvocateDaily.com.

“I am now encountering — anecdotally and personally — situations where do-it-yourself (DIY) tests have revealed differences in what people thought was their family tree,” says Allinotte, the owner of Allinotte Law Office Professional Corporation. “This has an impact when someone dies without a will and that knowledge is out there.”

According to the Minister of the Attorney General of Ontario's website, when a person dies intestate, s. 26 of the province's Succession Law Reform Act sets out how the estate is distributed, following the degrees of consanguinity in the family — from spouses to children and grandchildren, to parents, siblings and then more distant relatives. Only biological and adopted children are entitled to inherit on intestacy.

Allinotte is concerned that people are applying for DNA tests carelessly.

“They want to know about their lineage, but when they get the results, it can blow up the family. For example, they might find they have a different heritage than what they thought. They may have had a different life and relationships if they had known. They might find that their parents are not their biological parents. Family secrets can be completely exposed,” she says.

The path to succession on intestacy applies in conjunction with the definition of “child” in the Children’s Law Reform Act, Allinotte says.

Also relevant are the provisions of the All Families Are Equal Act, which covers children conceived by sperm and embryo donation and surrogacy, she says, noting sperm and egg donors would not be considered parents of a child in an estate.

“Because of these DNA tests, anonymous sperm and egg donors and closed adoptions are pretty much non-existent now,” Allinotte says. “Part of the function of these websites is to automatically match your sample with others on the site. You are not just risking upending your own immediate family circle, but also the relations of individuals who help determine your result.”

She says in estate cases, the trouble often arises when the lawyer starts to look for relatives such as half-siblings, nieces and nephews and more remote relationships.

“If the question of consanguinity arises, the estate trustee has an obligation to determine if the person is entitled, and the courts need to determine the question before they can proceed,” Allinotte says. “The DIY DNA results would not be proper evidence in court, but the fact of having the test result could be enough for a court to order a proper DNA test.”

Testing is also relevant where there are doubts about paternity, she says.

“It is not necessarily a child coming forward,” Allinotte explains. “In the Ontario cases where requests for testing have happened, a man has passed away. There is a child that is known to him, but he has expressed doubts about parentage. Other family members come forward and say they need a DNA test to determine if the child is an heir and will inherit.”

In two separate cases, in 2009 and 2010, she says a sibling came forward to dispute that a child was the deceased’s biological child.

“In one, they used the presumptions of parentage outlined in the legislation to make the declaration without ordering the DNA test,” Allinotte says. “In the other, there were several presumptions of parentage, but there was also evidence that parentage was in doubt, so the court ordered the test.”

Failure to make a will — or to make a new one if your existing will is revoked by marriage — can have a harsh effect on a person that the deceased treated as or thought was his or her own and intended to provide for, but is actually not a biological or adopted child, she says.

“If a child is raised as their own and the test says he or she is not related — does that mean the child is now excluded from the will?” asks Allinotte. “There could perhaps be a declaration of parentage based on the legislated presumptions.”

A well-drafted will can address such a scenario, or a similar situation such as when an unacknowledged or unknown child appears, she says.

“It’s more important now to ensure that the people who are related to the testator are properly defined. A proper definition will set out whether someone unknown to you falls under ‘heirs and issues,’” Allinotte says.

“When you draft the will you should narrow the classes of heirs by requiring a ‘settled intention’ to treat a person as if they are clearly part of the family,” she says. “If you didn’t know the child or relation, then the settled intention isn’t there. It eliminates a biological relative who wasn’t part of the family and includes a non-biological relative who is clearly part of the family.”

Allinotte says it’s early days in the use of DNA testing in estates, and it’s hard to know the impact such testing will have going forward.

“I suspect the problem will grow, especially when people pass away without a will,” she says.

Allinotte urges caution for anyone thinking of submitting their DNA for testing online and says, apart from potential headaches in estate disputes, there are “massive privacy concerns” when sending DNA samples away.

“I don’t imagine the information is well-protected,” she says. “There is no guarantee that results are kept confidential or if they are shared with other users. You can use a fake name, but depending on where it comes in the register, people can tell who it is.”

In addition, Allinotte warns that these companies could sell data or go bankrupt.

“Giving DNA samples to a for-profit company is not a good idea,” she says.

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