Can a person claiming to be the decedent’s biological child out of wedlock obtain a court order directing DNA testing of the decedent’s acknowledged children, in order to verify her claim?  In Matter of Estate of McGuire, 203 N.Y.S.3d 922 (Sur. Erie Feb. 15, 2024), the Surrogate’s Court answered that question in the affirmative, even where the will in question had already been admitted to probate.

Decedent’s probated will named his spouse and seven acknowledged children as distributees.  A claimant (Jordan) filed a notice of claim, asserting that she was the biological child of decedent out of wedlock.  She requested that the court order DNA testing to compare her DNA with that of one of decedent’s seven acknowledged children.  Among other submissions, Jordan’s mother submitted an affidavit testifying to an affair with the decedent resulting in Jordan’s birth. The executors and most of decedent’s acknowledged children objected to Jordan’s request, arguing that (i) New York EPTL 4-1.2, which provides for genetic testing in certain situations, applies to intestate cases only, (ii) DNA testing would be an invasion of their privacy, and (iii) even if decedent’s biological child, Jordan would have no rights under the will.

The court ruled in Jordan’s favor, noting that EPTL 4-1.2 can apply, under other sections of the EPTL, in cases where there is a will, for example where a will refers generally to “children” or “descendants.”  Further noting that DNA testing “has advanced to the point that it can determine paternity to a 99-100% scientifically acceptable certainty,” and can be done in a non-invasive manner, the court concluded that “any such privacy rights as have been asserted here are outweighed by Jordan’s interests in determining conclusively whether decedent was her biological father.”  Whether Jordan might succeed on the merits if found to be decedent’s biological child was deemed “a matter for another day.”  The court ordered a conference to “work out the details of how such [DNA] testing should be done.”

The Takeaway: DNA testing has become sufficiently commonplace and reliable that, if paternity is an issue in a trust or estate case, one should not expect to succeed in opposing it, absent reasons more compelling than those offered in McGuire.