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Science and law join together to assist in Australian family provision claims

Aside from criminal forensics, the two distinct worlds of law and science have generally refrained from entwining.

However, the many advancements scientists have made in DNA testing and other biological functions are playing a greater role in helping courts around Australia settle inheritance disputes based on family provision claims.

All it may take is a quick cheek swab to determine a person’s lineage and family members. This has certainly caught traction in the family court scene and has been great for paternity testing, but only recently has the scientific development been used in civil proceedings.

This may include claims made against deceased estate holders. One of these simple tests could be used to help courts determine cases based on the Family Provision Act.

However, the provisions that must be applied when looking for DNA testing in a Family Provision Act case differ from state to state, so it’s important to know what these are. For example, in Western Australia, there are four relevant provisions anyone looking to file a family provision claim should be familiar with.

The rise of DNA testing in family provision claims

The first provision states if there is an intestacy, the only people who can file a family provision claim are any children of the deceased who can either establish “to the reasonable satisfaction of the court” that they are in fact the deceased’s child, or parentage of the child was accepted by the deceased.

The second states that if a will was drawn, the requests of the document should reflect the wording of the first provision.

Third, the court will look into the physical and mental condition of anyone who files a claim, which could result in an ordered medical exam.

The final provision states that the Supreme Court can make any orders under Order 1 Rule 3A.

In one family provision claim that used DNA testing to come to a conclusion, a court ordered a mother and child to submit to testing because it needed the best scientific data available to make a decision.

“Why should the court decide a case on the less perfect evidence, when the better evidence can be obtained relatively cheaply and speedily (and) an order for DNA may very well achieve the settlement of this case?” the presiding judge wrote.

Scientific progress has made it easier than ever for contesting wills lawyers to dispute cases that can be solved with DNA data.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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