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Western Australia provides update on DNA testing in inheritance disputes

In September, the Western Australia Court of Appeal announced it was looking into the role advanced DNA testing measures had in helping resolve inheritance disputes and family provision claims.

Now, it has provided an update on progress, announcing its decision regarding how it plans to make new orders for DNA evidence in contesting wills cases. The decision can be traced back to the 2007 case Hallett v Cottam, which decided that WA’s Supreme Court had inherent jurisdiction to mandate someone involved in a contesting wills case to submit to a DNA test.

However, the court has said the previous decision was wrong, and it was based on a “minority view” of a previous case that took place in the UK.

In its most recent announcement, the court said that it did not accept the dual nature of the decision. On the one hand, it stated that the court was unable to ask an adult to submit to a blood test against his or her own will. However, the decision would have meant the court then had the authority to order someone to submit to a blood test for the purpose of DNA testing.

Experts weigh in on contesting will situation

Legal experts in WA say that the court’s decision makes sense, and that it has been a long-established standard that everyone has the right to determine whether or not they want to submit to a blood test.

One specialist stated that allowing the court to order a DNA test would be an “important inroad into a fundamental right, and justice would not be served by such an inroad”.

In the latest case to discuss whether or not DNA testing should be mandatory for family provision claims, no notice of a request to submit to the test had been served, even though this is a requirement under the WA Supreme Court.

The court has not yet determined whether DNA testing can still be ordered under certain provisions of the law, though, in regard to the 2013 Furesh v Schor case.

Family provision claims are complex enough as it is, and when DNA testing is included, it means these cases could become even more convoluted and drawn out.

Getting in touch with contesting wills lawyers is one of the best ways to learn more about how to successfully file a family provision claim.

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Contesting Wills
 — Gerard Malouf & Partners

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