Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss
whether it is possible to force DNA testing where paternity or maternity is already proven by way of an official birth certificate

Requirements to contest a Will

It is necessary to have an interest in an estate to contest a Will. By way of example:

– to proceed with a claim against the legal validity of a Will one must (generally) have an
interest in the outcome of the claim (either because of a bequest in a previous Will or under
the rules of intestacy where there is no previous Will)

– to proceed with an alternative or additional claim for financial provision under s. 2 of the
Inheritance (Provision for Family and Dependants) Act 1975, ordinarily one must be the
deceased’s child (although of course claims can be made by step-children and those
maintained by and/or married to the deceased).

It is easy to see then how proof of one’s paternity/maternity can be relevant issues and
generally speaking the provision of official copies of one’s birth certificate is all that is
necessary. These can be obtained very simply and efficiently from the General Register

General Register Office (GRO) – Official information on births, marriages, civil partnerships and deaths

Presumption of paternity/maternity

It appears that ordinarily a birth certificate revealing paternity and/or maternity (in other
words identifying the mother and/or father) gives rise to a presumption that the mother and/or father are those so identified. Presumptions can of course be rebutted on the balance of probabilities and the position is no different here. In Nield-Moir v Freeman [2018] EWHC 299 (Ch) HHJ Matthews dealt with a claim that the defendant’s father was not as noted on her birth certificate. He confirmed at paragraph 5 of his Judgment that:

“Accordingly there was a (common law) presumption that the deceased was the defendant’s
father, rebuttable on the balance of probabilities….”

For the entire case see – Nield-Moir V Freeman [2018] EWHC 299 (Ch) (21 February 2018) (

In Nield-Moir HHJ Matthews appeared to find that the provision of witness evidence from
third parties supporting the applicants case the defendant was not the deceased’s biological
daughter (despite the fact that he was named on her birth certificate, was born during the
currency of the deceased’s marriage to her mother and in relation to whom the deceased had paid maintenance) was sufficient to persuade him to find a way of ordering the defendant to undertake a DNA test (albeit he appeared to accept he may not have had the jurisdiction to force the defendant to take the test – see below). He seems to have been particularly unimpressed with her refusal to undertake the test.
He appeared to accept that it was sufficient to raise via such contrary witness evidence,
“triable issues” to be determined later at trial and not necessarily prove them to persuade a
Court to order DNA testing. For example, at paragraph 50 towards the end of his Judgment
he stated:

“The applicant has a number of witness statements from third parties, who say that they were told by the deceased that the respondent was not his daughter. Of course, I cannot and do not say at this stage that those statements are correct. They can and will be tested at trial….On any view, the evidence raises an issue to be tried. And DNA evidence would be highly relevant to this issue. As I have already said, it is quick, painless, risk-free, and in this case also cost-free to the respondent, as the applicant has confirmed that she would pay in the first instance”

Jurisdiction to order DNA testing

In the first instance, the Court would, it seems, be concerned to establish that the proposed
DNA testing could be meaningful – in other words could yield a result on the balance of
probabilities. In Nield-Moir HHJ Matthews found so in paragraph 13 of his Judgment:

“Mr Clarke accordingly submits that although the test cannot answer the question of full or
half-siblings definitively it can do so to a very high degree of probability. I accept this
submission. In my Judgment the proposed evidence would be sufficiently accurate for the
purpose of answering this question”

Turning to “jurisdiction” the position is more nuanced.

There is a “jurisdiction” by statute under Part IV of the Family Law Reform Act 1987 under
s. 23 (1) in any civil proceedings in which the parentage of any person fails to be

This is mistakenly (and confusingly) referred to in paragraph 20 of HHJ Matthews Judgment
in Nield-Moir as falls

It does not then necessarily generate a legal right to test DNA in Will dispute and Will
contest claims.

Instead, HHJ Matthews found variously that the court had an inherent jurisdiction to order a
test, but not necessarily by force although it could get around this problem by simply
providing that in circumstances of non-compliance it can (and will) draw adverse inherences
at trial (where of course the presumption of paternity or maternity [derived from the official
birth certificate] is ultimately determined). For example at paragraphs 36 and 37 of Nield-

“….the court may well have an inherent jurisdiction to order a person to consent to giving
such a sample so that it may be DNA tested. A failure in such a case to consent might then
amount to a contempt of court…..But I need not decide that question now, because in fact
that is not the order sought here. What the applicant instead asks for is similar to a direction
given under s. 20 of the 1969 Act, with a similar consequence in case of non-compliance, ie
simply that an adverse inherence may be drawn against the respondent. The court might in
an appropriate case attach a different sanction to the direction, such as a stay of the claim or
the striking out of the defence, in case it be not complied with (an unless order)”

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