The Deputy and the DNA Test: How a Professional Deputy Aimed to Prepare for Possible Inheritance Disputes

Deputyships are rarely connected with inheritance disputes. For one thing, Deputies act to help and protect living people who have lost the mental capacity to make decisions. Inheritance disputes, by contrast, usually happen after someone’s death. Like Lasting Powers of Attorney – which are similar arrangements in many ways – Deputyships end as soon as the person being protected dies.

An unusual case from the end of last year, however, saw a professional Deputy seeking to reduce the risk of any disputes or claims occurring over the estate of the person they were protecting.

This blog examines the case and some of the interesting issues it raised. If you would like to know more about Deputyships in general before reading about this case, please take a look at our help guides on the subject. For more about estate disputes, you could download our free new ebook ‘Challenging a Will’.

The case of Bagguley v E [2019] EWCOP 49

The case concerned a 76-year-old man, referred to throughout as ‘E’, who was living with severe dementia. E’s condition meant that he did not have the mental capacity to make decisions for himself and, since 2014, he had been under the care of a Deputy appointed by the Court of Protection to manage his property and financial affairs. E’s Deputy was a solicitor named Richard Bagguley.

E had three adult children, referred to as D, P and A. However, there had been some doubts in the past over whether E was their biological father. Some DNA tests had already been carried out, one in 1991 following the suicide of the children’s mother, and another in 2002. The first test had been taken to determine whether E was the children’s father, the second had focused on how closely related the children were to each other. The tests had indicated that there was a high probability E was the father of D, P and A, but the results were not absolutely conclusive.

E’s health was deteriorating and Mr Bagguley thought that question marks over the children’s parentage could increase the risks of disputes arising over E’s estate when he died. He applied to the Court of Protection to allow a DNA sample to be taken from E so that a further paternity test could be conducted. Because of E’s lack of mental capacity, he could not provide the required consent, and Mr Bagguley wanted a ruling from the Court to determine whether making this decision for him would be in E’s best interests.

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The court’s decision – was the DNA test in E’s best interests?

Assessing whether something is in a protected person’s best interests involves looking at many things. As the judge stated: it “requires a broad and often subtle evaluation of a wide canvas of factors.” For the court, this included all of E’s current circumstances they considered to be relevant and also any evidence of E’s past and present wishes, where possible.

E had commissioned the 1991 DNA test himself, and though the court found that E had accepted the result of it as certain proof that they were his children, the court also found that it set clear indications E would want to know the truth – and that he was not against the idea of DNA testing to confirm it.

The court acknowledged that the DNA test would provide no medical benefit to E, but recognised that the result could play a key part in E’s legacy after his death.  The judge held that someone’s best interests do not instantly cease when they die and there could be many things after death which might affect their best interests in life – such as how that person is remembered. The judge accepted that the way in which D, P, and A remembered E could be influenced by confirmation that he was their father.

The court accepted that having conclusive proof of parentage would reduce the possibility of inheritance disputes between D, P and A after E’s death. In addition, the judge noted that taking the DNA sample from E would be “probably no more intrusive than assisting E to clean his teeth”. As such, the court ruled that having the DNA test was in E’s best interests.

What were the risks of an inheritance dispute arising?

Unfortunately, the court’s judgment did not mention whether E had made a Will before the onset of his dementia. The existence of a Will changes any inheritance situation. Below is an exploration of some of the different possibilities:

• If E had made a Will – It might serve as another way of reducing the risk of disputes occurring after his death. Wills can provide certainty, setting out someone’s wishes for their estate. For example, if E had made a Will which named D, P and A specifically as his beneficiaries, E’s wishes for sharing his estate would be clear for all to see.
• If E had made a Will but its terms were more ambiguous – A Will may not have completely ruled out the possibility of disputes, however. If the wording in the Will was less specific than suggested above – perhaps leaving his estate to ‘his children’ (rather than naming them specifically) – questions over parentage would have made the situation ripe for legal dispute. One of the children might have alleged that one or both of the other children were not biologically related to E, for example, and so not eligible to benefit.
• If E had not made a Will – When someone dies without a Will, the intestacy rules decide who receives their estate. In E’s case, as he has no living spouse, his estate would be shared between his children. Again, any of the children could then seek to argue that one or both of the other children were not biologically related to E, to try and disqualify them from receiving a share. 
• Whether E had made a Will or not – There remains the possibility of that someone could make a claim for ‘reasonable financial provision’ from E’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. This becomes more likely if one or more of the children were to receive a smaller share from E’s estate than the others, or perhaps nothing at all. Our factsheet ‘Excluding someone from your Will’ contains more information about these kinds of claim.

It is worth noting that E’s lack of mental capacity means it would not be possible for him to make a valid Will now. However, there could be another option. Deputies and other interested people can apply to the Court of Protection to make a Statutory Will on behalf of someone who lacks mental capacity.

Inheritance disputes are often sparked by uncertainty. By granting authority for the DNA test in E’s case, the Court of Protection has hopefully removed some of that uncertainty, and with it some of the risks of a dispute occurring over E’s estate when he dies.

Where possible, it is always better to avoid legal disputes before they occur. Having expert legal support to help you identify potential inheritance issues and plan for them accordingly can make all the difference. 

Advice from Roche Legal

At Roche Legal, we are reassuring experts who can help you with a wide range of legal matters. We specialise in:

• Court of Protection matters
• Wills
• Contested Probate and Will Disputes
• Trusts and Estate Planning
• Probate and Estate Administration
• Powers of Attorney
• Presumption of Death Applications
• Missing Persons Guardianship Applications