Barnes Estate v. Barnes

Barnes Estate v. Barnes

Although DNA testing of the alleged beneficiaries would resolve the paternity question relevant to construction of the Will and is generally appropriate, ordering such testing is futile absent reliable, documented evidence that comparative DNA from the deceased father (Kenneth Barnes) is available for testing; therefore the application is adjourned with a 45-day term for the applicant to obtain evidence of availability of Kenneth's DNA and to re-set the application on proper notice if such evidence is obtained.

Citation
2011 BCSC 1449
Parties
Administrator and Beneficiary: Jaymie Michelle Barnes; Administrator: Diana Irene Barnes; Respondent/applicant: Eric David Barnes
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 October 2011
Procedural Posture
Probate/will Construction / Application for DNA Testing; Adjourned on Terms
Outcome
Application adjourned generally on terms to permit applicant to obtain evidence of availability of comparative DNA; liberty to reapply; Master remains seized of further appearances under the adjourning order
Legal Topics
Paternity Testing, DNA Evidence, Will Interpretation, Rule 7 6(1) SCCR, Jurisdiction of Master
Source Language
English
Probate Evidence Civil Procedure Paternity Testing DNA Evidence Will Interpretation Rule 7 6(1) SCCR Jurisdiction of Master

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Parties

Jaymie Michelle Barnes

Administrator and Beneficiary

Diana Irene Barnes

Administrator

Eric David Barnes

Respondent/applicant

Procedural Posture

Probate/will Construction / Application for DNA Testing; Adjourned on Terms

Legal Issues

  1. 1 Whether Jaymie and Steven Barnes are lineal descendants (issue) of Kenneth Barnes for purposes of the Will
  2. 2 Whether the court (Master) may order DNA testing under Rule 7-6(1) SCCR in a petition to resolve paternity for inheritance purposes
  3. 3 Whether comparative DNA from deceased Kenneth Barnes exists and is available for testing

Ratio Decidendi

Although DNA testing of the alleged beneficiaries would resolve the paternity question relevant to construction of the Will and is generally appropriate, ordering such testing is futile absent reliable, documented evidence that comparative DNA from the deceased father (Kenneth Barnes) is available for testing; therefore the application is adjourned with a 45-day term for the applicant to obtain evidence of availability of Kenneth's DNA and to re-set the application on proper notice if such evidence is obtained.

Court Disposition

Application adjourned generally on terms to permit applicant to obtain evidence of availability of comparative DNA; liberty to reapply; Master remains seized of further appearances under the adjourning order

Orders

  • Applicant has 45 days from date of these reasons to obtain evidence of the existence and availability of Kenneth Barnes' DNA
  • Upon obtaining such evidence the applicant shall re-set the application on proper notice to Jaymie Barnes for the sole purpose of presenting argument on admissibility and/or reliability of the evidence obtained