Family Law

Colin Birtles died without a will in 2013. He was survived by his two daughters, Lorraine Freeman and Janice Nield-Moir. Unbeknown to her elder sister, Mrs Freeman successfully applied for letters of administration to enable her to manage and distribute his estate, amounting to his terraced house in Oldham and a small amount of cash. According to the rules of intestacy, Mr Birtles estate should be divided equally between the two sisters.

When Mrs Nield-Moir learned that Mrs Freeman had obtained a grant of administration, she issued a claim for revocation on the grounds that she wished to be appointed as administrator for the estate. At the same time she sought a declaration that Mrs Freeman is not entitled to any interest in the estate, alleging that she is not, in fact, Mr Birtles' biological daughter. Mrs Nield-Moir has collected a number of witness statements from third parties to the effect that Mr Birtles said as much to several persons during his lifetime.

Mrs Nield-Moir applied to the High Court for a direction that Mrs Freeman submit to a DNA test, which would provide scientific evidence as to her parentage before any distribution from the estate could be made in her favour. Mrs Nield-Moir offered to also be tested, to show whether they were related as full or half-sisters.

Mrs Freeman refused to consent to the DNA test. She stated that not only was her mother married to Colin Birtles at the time of her birth, but her birth certificate names him as the father, creating a common law presumption of their relationship. Moreover, after Mr Birtles and the girls’ mother were divorced, Mr Birtles paid maintenance for Mrs Freeman until she was 16 years old, under a court order to that effect. Mrs Freeman dismisses the allegations of her irregular parentage as 'nothing but gossip'.

In response to Mrs Neil Moir’s application, Matthews HHJ in Nield-Moir v Freeman [2018] EWHC 299 (Ch) concluded that there were three questions to be decided:

• whether the test would be sufficiently accurate;
• whether the court had jurisdiction to make the order; and
• whether in the circumstances the court ought to make the order.

Matthew HHJ quickly decided that DNA testing would produce a definitive answer as to both the applicant and the respondent’s parentage. He also determined that, following the Court of Appeal’s recent ruling in Anderson v Spencer [2018] EWCA Civ 100, that the court has an inherent jurisdiction to order DNA testing, even though it currently has no statutory jurisdiction to do so. Matthew HHJ then held that the issue to be determined was so critical to Mrs Nield-Moir’s case that the court ought to direct that the test should go ahead.

As things currently stand Mrs Freeman cannot be compelled to provide a saliva sample for the DNA test. But Matthew HHJ made it clear that the court will draw an adverse inference against her case if she continues to refuse.

It, therefore, seems that, in this instance, if Mrs Freeman wishes to secure her inheritance without difficulty she will have to submit to a DNA test to prove that Mr Birtles was her biological father. Should it transpire that Mr Birtles was not, she will not be entitled to a share of his estate under the laws of intestacy, and she will have to look, for example, to the Inheritance (Provision for Family and Dependants) Act 1975 for discretionary relief.

Who knows how this case will play out but it does seek to demonstrate the interplay between scientific developments and the conduct of litigation in the modern world, and the lengths parties will go to to pursue claims over relatively modest estates.