In a Wills Variation action, can DNA evidence be used to prove that a Testator is not the father of a child even though he is listed as the father on her birth certificate and immigration papers?

  • Only children who are the biological children or adopted children of the deceased can apply to vary his Will
  • Foster children or other children who have been treated by the deceased as his own children are not eligible to apply for a variation of his will.

In a recent case, Mr. Doman married Mrs. Doman when she was pregnant with a child of another man.  Mr. Doman was identified as the child’s father on her birth certificate and also on her Canadian Immigration card.

 The child was not raised by Mr. and Mrs. Doman but was put in a foster home.  Most of the child’s foster home, schooling, and wedding expenses were paid by Mr. Doman. 

 After Mr. Doman’s death, DNA testing was done that concluded that there was no possibility of Mr. Doman being the father of the child.

The Court held that the Plaintiff was not entitled to apply to vary the Will of Mr. Doman as she was not his biological or adopted child.  The Court further held that this was the case even though Mr. Doman willingly allowed the birth certificate and the Canadian Immigration Card to list him as her father.

The Court of Appeal upheld this decision.

If you have a situation that might require DNA evidence, we can help.  Contact us.

Read the case:  Peri v. McCutcheon

 

 

 

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