Kohari v NSW Trustee & Guardian  NSWSC 1372
A family provision applicant has been ordered by the Supreme Court of NSW to undergo a DNA test in order to prove he is a child of the deceased.
The issue has arisen as the defendant has argued that the person making the application is not a child of the deceased. Whether the person is a child of the deceased, or not, is very important in determining how the law should be applied and whether the person is eligible to make a family provision claim on the estate.
The Court has power to order persons to undergo parentage testing procedures where the parentage of a child is in dispute. The Court must consider and determine a number of factors before making any orders, which includes whether any objections are raised by the child or any person potentially affected by the orders. Medical, religious or other relevant grounds are considered before any order is made.
In these circumstances, the person claiming to be a child of the deceased was also a child of the deceased’s first wife. He was born around 4 years into the marriage and the deceased was recorded as his father on his birth certificate. He was also named as a child on the deceased’s death certificate.
The issue of paternity was raised as the sole beneficiary under the deceased’s will alleged that the child was born to another father and gave evidence of conversations she had participated in to the effect the child was illegitimate. This matter was alleged to be the cause of the breakdown of the marriage.
The deceased had also given evidence in a family provision claim he had made against his own mother’s estate which referenced his belief that the person was not his child. He had never supported or claimed the child to be his.
In order for the parentage test to be effective, the Court determined that a DNA Family Reconstruction Test with the person claiming to be a child, the child’s mother, a claimed biological child of the deceased and the sister of the deceased were to provide cheek swabs for DNA analysis.
The results of the DNA testing will likely be considered by the Court once they are available.