Recognising Parent and Child Relationships – Part 2

This is part two of a two part article on the various parent and child relationships recognised in Western Australia in contested deceased estates, which necessarily involved an analysis of:

(a) the Family Provision Act 1974 (WA) (FPA), the Administration Act 1903 (WA) (Administration Act) and the Wills Act 1970 (WA) (Wills Act);
(b) relevant case authority; and
(c) the utility of DNA evidence.

This part of the article will deal with item (c).

Is there a role for DNA?

When the biological relationship between a party (to estate proceedings) and the deceased is in issue, DNA testing via a simple non-invasive mouth swab can be of great assistance.  However that presupposes that the party is happy to have such DNA testing conducted.  Often that is not the case.

Assuming at least one party is unwilling to provide a DNA sample, there are two possible sources of power by which a Court can compel such provision.

The first is Order 28 rule 1(1) of the Rules of the Supreme Court 1971 (the Rules).  This section provides that, should it be necessary to consider the question of the physical and mental condition of any party, an opponent may serve a notice on them to submit to a medical examination.

The second is the inherent jurisdiction of the Supreme Court (the Court) to make orders under Order 1 rule 3A of the Rules.

Whether exercising a power under Order 28 rule 1 or Order 1 rule 3A, there is a strong discretionary element involved.  The cases in this area show just how hard the exercise of that discretion can be, particularly in light of fundamental human rights.

The Cases

In the 2002 case of McComish v Sharpe[1], the Defendant executors applied under Order 28 Rule 1 for the claimant and her infant son – who claimed to be the child of the deceased – to submit to DNA testing.  The deceased had admitted paternity of the infant on oath, but later expressed doubts, to the executors, that he was the father. The mother refused (also on behalf of her child) to submit to DNA testing.

Master Bredmeyer was satisfied that the Supreme Court of WA had inherent jurisdiction to exercise its discretion to make the orders, and that it could also make the orders under Order 28 Rule 1 of the Rules.  In his reasons, however, he distinguished between the position of a child and the position of an adult.

He relied on a 1972 House of Lords decision that held the court had power to order a child to take a blood test in order to help determine paternity.[2]  He then went on to note that the position is less clear in relation to adults, citing from the judgment in the House of Lords decision mentioned above.  However he concluded the Court had the inherent power.

It came down to an acknowledgement that the Court could not compel someone to undergo the test in the sense of holding them down and taking the test.  However they could order that such test be undertaken, failing which, for example, a stay of proceedings would occur.

To continue reading and download the 6 page paper, please click Recognising Parent and Child Relationships – Part 2.

For more information on this update or any other estate matters please contact Claire Hawke-Gundill on (08) 9321 3755.

The information published on this website is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.


[1] [2002] WASC 96.

[2] S v McC; W v W [1972] AC 24.