When it comes to family life, the outcome of a DNA test can have its effect on the enforceability of a will.  PHOTO/FILE


How DNA differences can overturn a will

What you need to know:

When it comes to family life, the outcome of a DNA test can have its effect on the enforceability of a will or the entitlement of benefits under a will.

As proprietors of a family business grow older, a key challenge lies in choosing heirs who will smoothly transition into leadership roles upon your demise.

Discussions of Deoxyribonucleic acid (DNA) and business invite a lot of debate specifically when you hear the word DNA and business, it relates more to DNA and family related business.
 According to Mr Arnold Nogan Kimara, an attorney at Kimara Advocated and Consults, DNA can affect some of the business relations between family members.

He says, the other arm of it might be in terms of economics for those involved in the medical practice of running licensed premises where DNA is done.
When it comes to DNA and family affairs, Counsel Kimara views it as to what extent DNA can affect how business can be done by a family, specifically sharing thoughts on how a DNA test would affect legitimacy of entitlements under written will or a will by a family member who is gifting.

He explains that a will is a document under which a testament maker would gift or record their wishes in a way they feel their estate should be distributed or managed. 

“For a will to be effective, it must tick certain boxes. The maker of the will must meet a certain age criteria, so they must not be a minor,” Counsel Kimara says. 

For a will to be effective 
One standard, Counsel Kimara says, is sound mind which is the right conscience. The final decision that the testator makes determining how particular property should be disposed of, must be arrived at in their rightful state of mind and when they are satisfied by the wish they make.

Counsel Kimara says, after 18 years, the law recognizes that a person is able to make a majority consent. So when it comes to family life, the outcome of a DNA test can have its effect on the enforceability of a will or the entitlement of benefits under a will, because the will is always a written wish of a testator.

 So questions can arise: At the time this will was made was this person in the right state of mind? Is their wish well guided? Is it what would be regarded as their final wish taking all factors into consideration?
 Counsel Kimara gives an example of a parent or an elderly member of the family, who writes down a will in which they record how their property should be disposed of to the people that are named in the will, one of the people or a number of them in the will are named as children. 

Most of the wills will have the names of the children whom that person was blessed with, with their mother or father mentioned.

He notes that if it is a parent, they will identify the child even by the opposite parent with whom they had the child with. If a father is in a polygamous marriage, the mother of those children will be mentioned.

As long as they address them as “my child,” then they describe them according to the social union they have with their wife.

“It then has a serious bearing on the correctness of the relation. If an issue arose and a DNA test is required, the relational question whether in fact there is a relation, can be final in determining whether the testament wish was made with a right mind set, conscience or that it was under a false pretence or representation,” Counsel Kimara says.

The difference words make
The wording has the capacity to affect the contents or benefits arising in a will. If an elderly member of the family records their will, their property and the beneficiaries of those properties and names a particular beneficially as child had with mother so and so, should an issue arise about the actual paternity of that child, it will cause problems.

 There also possibilities where the mother believes that a child is theirs, when they are not. If the paternity of the child comes into question and by DNA it is revealed that the person does not have a matching DNA of the testator, their paternity will come in question. And when it comes into question, any decision recorded in the will ascribing benefits to this person, the capacity of the child will become impossible.

 If the issue is found out in the lifetime of the testator, they can change their will. As long as they still hold the mental capacity to make changes and additions to it, they can remove this person from the will and those expelled cannot claim an interest in the property even when that person grew up in the home, the moment paternity has been questioned.

Also, if the testator is no longer with the family, and has passed on to the next life. Should paternity issues arise, and the result of the DNA show that there is no paternal and child relation with this person categorised as child in the will, in that moment the benefits to this person can be challenged.

In extreme circumstances, for instance, where the testator is an adult member of the family and is a man and they believe that the four children are his, and makes a will giving property to them, as his children and the DNA results show that these are not his children, any other member of the man’s family can submit that will before court for cancelation, on account that the contents of the will were obtained under a false impression of existence of a paternal relationship with the children.

So that will can be revoked by court. Any member of the family can challenge the will’s authenticity in a sense that the mindset of the testator at the time was misconceived.

Also our current law under the Succession Act allows for the will to be cancelled where any part of it for benefit was obtained under fraud. Fraud means any false pretenses, false representations or misappropriation of truth can be categorised as fraud, so that will can be revoked.

Category of maternity
According to Counsel Kimara, there is the mother’s category. If the testator is a mum and for those few incidences where the woman at the hospital has given birth and there was a swap of the babies and they the child take home believing it is theirs and it grows up with them.

 When that mother makes a will and dies, the same thing can apply. Should the issue of maternity arise, as to whether this child is not of the testator who made some bequests of gifting in the will and the DNA shows there is no maternal relationship between this child and the woman, that is enough for the will to be revoked.

 Why? Counsel Kimara says, it can cause revoking in the sense that the person who made the will at that time was not in the right conscience, their conscience was clouded or veiled by a false impression. Many of these courts exist to enforce the actual intention of the testator.

The key thing why it would cause a revocation is that, a question would arise, “…that had these facts come to the knowledge of the testator in their lifetime, would they still hold the same testamentary wish? That is what would swing the entire will under dirt, because at that point, two minds had been created.”

Where the person would say, no matter the circumstances it’s alright the person shall remain beneficially or I take them as my legitimate child. When a law is defining a child, it defines them by their age, not by their origin. 

However, when it comes to defining a child of a marriage or relationship, the law calls it an issue. That the marriage / relationship was blessed with an issue, so the key thing is that the will, will then have the possibility of being revoked because two possible mindsets are created.

Where there is a doubt in the mind of the testator, the court would rather revoke the will. So some wills get revoked because they are unclear or the final mind of the testator cannot be comprehended very well. It means their will is revocable.

But, the will obtained by fraud is void, and not enforceable. Even before the court says so, for as long as there is evidence that that wish was made wrongly, that is why the law requires that the will should be made when the person is in their right state of mind.

 “The other thing that can cause will revocation is when the testator is at their weakest health, this person is always there and they are pressuring them (importunity). If it is discovered that the benefit was derived because of circumstances that exert a certain level of a decision against their will, or what they would have desired and intended it also enough to revoke the benefit,” he says.

Dependents not affected by will
Other than that he says, the dependents can be included in the will, but you find other categories where a person simply says, “I am gifting this to my nephew or niece so and so.”  Since they are dependents, they receive gifts out of good will.

Dependents will not be affected by DNA because there is no challenge of claim of paternity or maternity. The ones who will be affected in a will by a negative or unexpected DNA result are those beneficiaries receiving benefit as child. The testator will identify a person as my son or daughter from a relationship with so and so, those stand the heavy risk of losing out the moment that component of the will is brought under question.

This will be as if someone who passed away died intestate, meaning they died without recording a will. 

When it comes to distribution of the estate, the negative effect of a DNA result disqualifying someone as child can affect distribution of the estate where the person is regarded as having died intestate. Why? This because it will then depend on the administrators with the consent of the actual beneficiaries to this person’s estate to make consideration for the person who is not a child.