A court in British Columbia declined to order that a woman take a DNA test to prove that she’s entitled to a share of her father’s estate — ruling that a family rumour about an alleged extramarital affair doesn’t justify the invasion of privacy.
The Supreme Court of B.C. rejected an application from a woman, who sought a court order requiring her sister to take a DNA test to prove that she’s the biological daughter of Roy Alvin Morberg, who died without a will in May of this year.
Morberg is listed as the father on the woman’s birth certificate and he raised her with their mother, who died in 2009.
However, according to the court’s decision, one of the sisters asked it to order a paternity test based on an alleged deathbed confession by their mother about a secret affair, and that another man fathered one of her daughters.
“If that allegation is true, the applicant intends to argue that [her sister] will not be entitled to any portion of the deceased’s intestate estate,” the court said — as a result, she asked the court to order a paternity test for her sister.
The sister opposed the application, denying the allegation that Morberg was not her biological father.
In its decision, the court said that for it to exercise its discretion to order a person to undergo a DNA test, “it must be in the interests of justice to do so” — and that the applicant has the burden of establishing the need for a test justifies the invasion of her sister’s privacy.
While the court noted that the test itself isn’t necessarily invasive — as it only requires a cheek swab, rather than a blood test — it does raise privacy issues, as the results of the test, the daughter’s “DNA sequence, the essence of her being, will be in storage and on a database over which she has no control.”
To justify this kind of invasion of privacy, the evidence to support that a DNA test be ordered should be “compelling,” the court said.
However, in this case, it found that, “the evidence is largely uncorroborated hearsay repeated by the applicant herself.”
Among other things, the court declined to admit evidence from a secretly-recorded phone conversation between the sisters, and it rejected an argument that a Facebook post indicated that the daughter admitted that Morberg wasn’t her father.
“… I do not find the failure to respond to, or specifically deny, an inflammatory Facebook post to be an admission in any respect. A party may reasonably choose to simply disengage from a public dispute on social media about private matters. Doing so should not be viewed as an admission against one’s legal interest,” the court said.
Ultimately, the court rejected the application, saying, “I agree with Ms. Morberg that an unsubstantiated family rumour repeated by the applicant and/or her sons is not a sufficient basis on which to compel a party to undergo a DNA test.”