Watching your Words – Barnes Estate v. Barnes

“Who’s the daddy?” and “Does it matter?” were two questions at the heart of the BC Supreme Court’s decision in Barnes Estate v. Barnes 2013 BCSC 1848. The court answered: We can’t be sure, and it doesn’t really matter as long as the person who made the last will intended the people whose paternity is now questioned to be included. The case highlights two important ideas:

1. The meaning of the words in a person’s last will are to be determined by the court putting itself in the position of the person who made the will at the point in time when he or she made the will, and from that vantage point interpret the language in the will in light of the surrounding facts and circumstances known to the person who made the will (the “Armchair Rule”); and

2. DNA evidence is not a slam dunk, especially if there are questions about the processes behind the DNA evidence.

In Barnes Estate, Maymie Barnes made a will which divided the residue of her estate equally between her two sons Ernest and Kenneth, who she named specifically. So far, no problem. However, the will went on to use some traditional Latin language about what would happen if either son died before her: the deceased son’s share would be taken “in equal shares per stirpes” among the “issue” of the deceased child alive at Maymie’s death. A previous court decision found that this meant Maymie’s estate would be divided among the first living generation of Maymie’s lineal descendants.

Both Ernest and Kenneth died before Maymie, each leaving two children who would be the beneficiaries under the will. Or so was the thought until one of Ernest’s children, Maymie’s grandchild Eric, argued that Kenneth’s children Jaymie and Steven were not really his biological children and so should not be considered “issue” under Maymie’s will. This would leave Eric a double size piece of Maymie’s estate. Jaymie and Steven had been raised as Kenneth’s children, and their mother swore they were Kenneth’s children, but Eric had his doubts based on some speculative evidence that Kenneth may have been sterile. He wanted DNA tests.

Before looking at the DNA results, the court found that Jaymie and Steven were “issue” within the meaning of the will regardless of their biological paternity. Jaymie and Steven had always been assumed by the family to be Kenneth’s children, and Kenneth always treated them that way. Maymie believed Jaymie and Steven were Kenneth’s biological children and must have intended that they would inherit if Kenneth died before her.

This is a different result than has been found when children are challenging a Will under the Wills Variation Act or claiming to be children on intestacy under the Estate Administration Act. In interpreting legislation, the term “children” has been found to mean biological and legally adopted children, not others raised by a person including step-children (although I note that the new Family Law Act provisions about parentage will apply now which will create different results especially in assisted reproduction situations). The difference with a will is that the court’s goal is to determine the intention of the person who made the will.

On the DNA test side of the case, which was not relevant in the end given the conclusion about Maymie’s intention, the court found Eric had not proved Jaymie was not Kenneth’s biological child despite DNA testing for Jaymie (Steven refused to be tested) which concluded that Kenneth could not be the biological father of Jaymie. The samples that were alleged to be those of Kenneth’s DNA had been obtained from a hospital collected during surgical procedures. The consent form was signed by Eric’s lawyer not by someone with legal authority to sign such as Kenneth’s estate. Correspondence with the testing company noted that the DNA was exceedingly difficult to work with. Arguments were made that there were gaps in the chain of custody of the DNA, uncertainty about whether it was really Kenneth’s DNA, and questions about the standard used to exclude paternity.