Sometimes courts will ignore DNA test results as a matter of law [click here, here]. And then there are those cases where who wins or loses can turn on a DNA test. Not surprisingly, if the estate is being litigated and a DNA test could help one side win, the other side may not voluntarily hand over a DNA sample. In those cases you’ll need a court order compelling the DNA test.

Until now Florida law’s been very muddy on exactly what you need to do to get a court order compelling a DNA test in probate litigation. Into this gap stepped the 2d DCA, delivering an excellent road map for Florida probate lawyers confronted with this problem.

DNA Testing & Probate Litigation: 2d DCA’s Five-Step Road Map:

  1. Frame the issue as a discovery request to test human bodily fluids
  2. Rely on Civil Procedure Rule 1.360 (Examination of Persons)
  3. Satisfy rule 1.360’s “in controversy” requirement
  4. Satisfy rule 1.360’s “good cause” requirement
  5. Satisfy rule 1.360’s “balancing-the-interests” requirement

Doe v. Suntrust Bank, — So.3d —-, 2010 WL 323031 (Fla. 2d DCA Jan 29, 2010):

In the linked-to opinion a guardian ad litem sought to compel the decedent’s two legitimate children to provide a DNA sample (via a buccal swab) to establish the paternity of “Madeline Doe”: a nine-year old out-of-wedlock child whose mother was claiming she was the decedent’s child. The 2d DCA framed the issue this way:

We view [the] motion for DNA testing as a discovery request and the trial court’s order as one compelling discovery.

Having framed the issue as a discovery request the court then tells us what discovery rule we need to rely on: Civil Procedure Rule 1.360 (“Examination of Persons”). By the way, in almost every appellate decision involving DNA testing in probate litigation the lawyers and the trial court always get this wrong, mistakenly focusing on the wrong discovery rule or failing to even state exactly which discovery rule they’re operating under (probably because they’re not sure). No one should repeat that mistake after reading this opinion.

Procedurally, this case is similar to Wicky v. Oxonian, 34 Fla. L. Weekly D1612 (Fla. 2d DCA Aug.14, 2009). In Wicky, the personal representative of an estate pursuing a wrongful death claim filed a discovery request seeking permission to test an existing sample of the defendant’s blood. The personal representative’s motion did not identify the rule of civil procedure that authorized the testing, although it mentioned rule 1.280, the general discovery rule. The defendant thought the request was made under rule 1.350, which addresses the production of documents and things. This court concluded that neither rule governed the request, and that “a request to test human bodily fluids in a civil action must satisfy the requirements of rule 1.360, ‘Examination of Persons.’ “ Id. at D1612.

The 2d DCA then did something you don’t often see. It went on to explain in detail what kind of evidence a working probate lawyer would need to put in front of his or her probate judge to satisfy all of rule 1.360’s requirements as applied to DNA testing in a contested probate proceeding. For those of us in the trenches this kind of guidance is pure gold, so I’m providing all of it. It’s a relatively long excerpt but well worth reading.

[“in controversy” requirement]

First, we note that the issue of whether Madelin is Doe’s child, and thus a beneficiary of his trusts, is clearly at the heart of this litigation. However, thus far, it appears that the only pleadings suggesting she may be his child are the Trustee’s verified complaint, which simply attests to the Trustee’s knowledge that Madelin claims to be Doe’s child and her verified motion to compel testing which states only that she “maintains she is a child born out of wedlock” to Doe. We believe something more is required, for example, an affidavit from Madelin’s mother alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact with Doe. See § 742.12(2) (requiring a sworn statement or declaration under penalty of perjury alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties as a perquisite to obtaining an order for scientific testing). Such an affidavit would satisfy the requirement that the subject matter of the test be “really and genuinely” in controversy. See Schlagenhauf, 379 U.S. at 119.

[“good cause” requirement]

Madelin will also have to demonstrate “good cause” for her request that Adrian and Evelyn be required to provide a buccal swab sample for testing. In the typical paternity action, a compelled DNA test is dispositive of the issue in controversy, and thus good cause for the test is established. See Wicky, 34 Fla. L. Weekly at D1613. This case is not, however, a typical paternity case because it is the legitimate children of the deceased putative father who are being asked to submit a sample of their DNA for testing. Under these circumstances, we believe two considerations are important in determining the existence of good cause. First, it would seem appropriate that Madelin provide some evidence that a comparison of her DNA with the DNA of Doe’s legitimate children could produce a result that would tend to prove or disprove the existence of a genetic link between Doe and Madelin. Second, it would also seem appropriate to require that she make some showing of need. For example, in the arguments presented to this court, Madelin and the Trustee have indicated that Doe was cremated, thus eliminating the possibility of any comparison with a sample derived from his remains. As far as we can tell, this fact was not presented as evidence in the trial court. Likewise, while the Trustee’s verified complaint suggests that no official documentation exists that would allow Madelin to establish that Doe is her father, it seems reasonable to require a more definitive statement to that effect, perhaps from Madelin’s guardian ad litem.

[“balancing-the-interests” requirement]

Finally, as we explained in Wicky, in all discovery matters the competing interests of the parties must be balanced. 34 Fla. L. Weekly at D1613. Doe did not name specific beneficiaries in his trusts; instead he instructed that the assets in the trusts be divided among his children. Other language in the trusts indicates he contemplated the possibility of having children other than Adrian and Evelyn. Given that this is an action to determine the beneficiaries of his trusts, consideration should be given to effectuating his intent as expressed in the trusts. As for Madelin, if she is in fact Doe’s child, her rights with respect to the trusts are equal to those of Evelyn and Adrian. Further, her interests are akin to those of an out of wedlock child seeking to share in the intestate estate of a parent. Florida recognizes the right of an out-of-wedlock child to share in a parent’s estate. See § 732.108(2). Florida also recognizes the right of a child born out of wedlock to establish paternity after the death of the father. See § 732.108(2)(b). For that right to be meaningful, the child must have a fair opportunity to prove that the deceased is her father. What is fair may vary from case to case, but any evaluation should take into account the heightened burden of proof imposed on out-of-wedlock children who seek to establish paternity after the death of the putative father. See Berkey v. Odom (In re Estate of Odom ), 397 So.2d 420 (Fla. 2d DCA 1981) (holding that in an action to establish paternity after the death of the father, proof of paternity shall be by clear and convincing evidence), disapproved on other grounds, Wilson v. Scruggs ( In re Estate of Smith ), 685 So.2d 1206 (Fla.1996).

On the other hand, Adrian and Evelyn have a privacy interest they seek to protect. In considering the weight to afford that interest, several factors are important. First, the intrusion is minimal-the test Madelin seeks is noninvasive, and the purpose of the test is limited to comparing her DNA to theirs. Second, rule 1.360(a)(3) provides that the court, upon request, may establish protective rules governing an examination. Thus far, Adrian and Evelyn have only asserted a generalized complaint that submitting a DNA sample invades their privacy, however, if they are able to articulate any specific privacy concern, they have the ability to ask the court to fashion protective rules to address that concern. Third, Adrian and Evelyn have affirmatively denied that Madelin is Doe’s child, and they have actively opposed all efforts by her or Maria to prove that they are his children. Having taken that position, it is questionable whether they should be permitted to withhold the evidence that may put Madelin’s claim and their defense to rest once and for all. They have the alternative of conceding that Madelin is a beneficiary should they wish to avoid the test.