Court Of Protection Orders Paternity Test On Incapacitated Male
DNA samples will be taken from a 76-year-old incapacitated man to determine the parentage of three adult children.
An application, made on behalf of patient E by his deputy, Richard Bagguley, was approved by the England and Wales Court of Protection, even though the protected person lacks capacity to give his consent.
The paternity test was approved as the information is in patient E’s best interests, will promote an affectionate memory of patient E and mitigates the risks of any contentious probate disputes following his death.
The protected person, E, is currently living through the advanced stages of dementia and unlikely to live for much longer.
Despite E having already completed paternity tests for the three adult males, the results are unknown, leaving the three would be beneficiaries in the dark as to who their biological father is and the potential inheritance they may be entitled to.
Given that these ingredients could easily permeate into a hostile situation, the deputy argued that it is in E’s best interests to ensure his legacy is known for pacifying anger, resentment and uncertainty rather than promoting feelings of bitterness.
Bagguley also argued that, if E had capacity, he would divulge the results of the original paternity test which would nullify the possibility of future contentious feelings erupting.
The test is not the first of its kind and follows two other similar cases, Re P (2009 EWHC 163 Ch) and Re D (2012 EWHC 2159 Ch). Both of which were permitted to test for paternity because it was in the best interest of the patient and later beneficiaries.
Hayden J, presiding judge, commented:
“The resolution of the DNA analysis is, I think, likely to promote an affectionate memory of him. That is in his best interests.”
Finally, the establishing of a relationship between E and the three adults will reduce and, one hopes, eliminate, the need for a contentious dispute after E’s death in relation to his estate’ (Bagguley v E, 2019 EWCOP 49).
How important is it for matters like this to be resolved before the probate process is started?