DNA TESTING ORDERS IN ESTATE LITIGATION

Posted on by James Zaitsoff

Questions of parentage occasionally arise in estate litigation. A person may die intestate (without a will) and the status of a ‘descendant’ child may be questioned.  Alternatively, a deceased person may leave a will that excludes someone who makes a claim to be the will-maker’s child, prompting a wills variation claim. In both situations, whether the deceased is genetically related would be an important issue at trial.

The current state of the law in B.C. is that a “child” for the purposes of wills variation claims — and entitlement on an intestacy — is limited to natural or adopted children of a deceased (although the B.C. Court of Appeal in Peri v. McCutcheon, 2011 BCCA 401, has left open the possibility that a future case might justify a broader interpretation).

In two recent decisions of the Supreme Court of British Columbia — Morberg Estate (Re), 2025 BCSC 2265, and Hyslop v. Banks, 2024 BCSC 1848 — parentage was in issue and interlocutory (pre-trial) orders were sought for a plaintiff/beneficiary to undergo DNA testing. These decisions provide a useful overview of factors a Court will consider when asked to make this type of order in estate litigation cases.

Background

In Morberg, the deceased had raised two daughters and died without a will. One sister alleged the other was not the natural child of the deceased and sought a DNA testing order. She alleged her sister, mother (when in hospital dying) and her father (on his ‘deathbed’) had all made statements that the sister was not the deceased’s biological child. The deceased was named on the sister’s birth certificate and had acted as her father throughout her life.

In Hyslop, the deceased left a will naming four children as beneficiaries and excluding the plaintiff, who brought a wills variation claim. The deceased was married to the plaintiff’s mother at the time of her birth, was named as father on her birth certificate, and referred to himself as her father throughout her life, including shortly before his death. The defendants relied on various statements allegedly made by the deceased and the plaintiff’s mother suggesting he was not her biological father, as well as evidence that the plaintiff’s younger sister – who shared the same mother – had learned through genetic testing that she was not the deceased’s biological child.

Jurisdiction and Principles Governing an Order for DNA Testing

The Court in both cases confirmed that it has jurisdiction to order DNA testing under the Supreme Court Civil Rules – Rules 7-6(1) and (4) – which allow orders for medical examinations and inspection/preservation of property.

While neither decision sets out a rigid test, a court will look at the following factors on an application:

  • Whether a DNA test is relevant and will materially assist the court in narrowing and focusing issues. When biological lineage will be a central issue at trial, a DNA test can provide probative information and may be determinative;
  • Whether there is a sufficient evidentiary basis to make an order.  While hearsay is allowed on these applications, speculation, bare assertions, unsubstantiated family rumors and statements made without any context are unlikely to suffice;
  • The invasiveness of the mechanism of a DNA test (cheek swab); and
  • The privacy interests engaged.  A DNA sequence is intimate personal information. An order compelling DNA to be provided will lead to information being stored outside of a person’s control and potentially vulnerable to release (i.e. data breach).

In Hyslop the Court made the order for DNA testing. Although the evidence relied upon by the defendants was largely hearsay and contested, the Court was satisfied that there was a sufficient evidentiary foundation to justify testing (particularly with the sister learning she was not the deceased’s child). Given the minimal physical intrusion of the test and its potential to significantly narrow the issues for trial, the Court found it was in the interests of justice. Interestingly, the Court in Hyslop did not consider the privacy interests engaged by a DNA test.

In the November 2025 decision of Morberg, privacy considerations were central, and the Court noted that evidence supporting a DNA testing order had to be compelling enough to justify an ‘invasion of privacy.’ The Court in that case declined to order testing as the evidence was an ‘unsubstantiated family rumor’ and was an insufficient basis.

Key Takeaways:

  • B.C. Courts have jurisdiction to order DNA testing in estate litigation under the Supreme Court Civil Rules but such orders are discretionary and will be fact-specific.
  • Applicants must present a credible evidentiary foundation to justify testing – rumours and uncorroborated hearsay will likely not suffice.
  • Privacy interests are engaged with DNA testing and there must be a sufficient evidentiary basis to justify an ‘invasion of privacy.’
  • While a negative test may very well be determinative, the B.C. Court of Appeal has left open the possibility of making an argument that the definition of ‘child’ should be expanded.