Applicant says sibling not entitled to estate of man who wasn’t her biological father
In an estate case where the deceased’s daughter sought an order compelling her sister to undergo a DNA test, the British Columbia Supreme Court held that an unsubstantiated family rumour repeated by the applicant and/or her sons was not a sufficient basis for the order.
In Morberg Estate (Re), 2025 BCSC 2265, the parties were the applicant and her sister, Ms. Morberg. Their biological mother passed away on Nov. 16, 2009. Last May 21, their 86-year-old father (as identified in the parties’ birth certificates) died without a will.
The applicant sought an order compelling her sister to take a DNA test proving that she was the deceased’s biological daughter. The applicant alleged that:
- While married to their father, their mother had a sexual relationship with another man
- That extramarital relationship resulted in Ms. Morberg’s birth
- The family only learned this ‘fact’ when Ms. Morberg said something to that effect
- Their mother confirmed this ‘fact’ while terminally ill in the hospital shortly before her death
If Ms. Morberg was not the biological daughter, the applicant planned to argue that her sister did not deserve any portion of the deceased’s intestate estate.
The applicant cited case law indicating that the word ‘child’ referred to only the deceased’s natural or adopted child under BC’s Wills Variation Act, 1996, since replaced by BC’s Wills, Estates and Succession Act, 2009.
The applicant’s evidence in support of DNA testing included evidence from a patient who had shared the deceased’s room and a transcript of a telephone conversation between herself and her sister that she had surreptitiously recorded.
Ms. Morberg objected to an order forcing her to undergo a DNA test based on ‘unsubstantiated allegations and conjecture.’
DNA test not ordered
The Supreme Court of British Columbia dismissed the application and ordered the applicant to pay Ms. Morberg’s application costs. The court ruled that the applicant failed to meet the onus of establishing compelling circumstances to justify issuing the requested order for a DNA test.
The court accepted that:
- It had the jurisdiction to make the requested order under rules 7-6(1) and (4) of the Supreme Court Civil Rules
- The DNA test results might help it determine Ms. Morberg’s entitlement to the estate, notwithstanding that the issue of whether the definition of ‘child’ would include her in any event, given the comments in Hyslop v. Banks, 2024 BCSC 1848, was still arguable
- The deceased’s identification as Ms. Morberg’s father on her birth certificate led to no presumption of paternity
However, the court emphasized that the applicant had the onus of proving, with enough compelling evidence, that ordering a DNA test would serve the interests of justice.
The court noted that the applicant’s cited decisions sparsely discussed privacy concerns, though they did indicate that blood tests were not cruel and unusual under s. 12 of the Canadian Charter of Rights and Freedoms.
According to the court, while Hyslop did not comment on privacy interests arising from DNA testing, the ruling did comment on whether a DNA test itself would be invasive. Hyslop concluded that the weight of the evidence warranted conducting the test.
In the present case, the court accepted that a DNA test itself – a cheek swab, as opposed to a blood test – might be simple and non-invasive. The court also acknowledged known safeguards against the improper use of DNA data.
However, the court stressed that the DNA test would:
- Store the data regarding Ms. Morberg’s DNA sequence, the essence of her being, in a database, in which she lacked control over others’ access
- Directly affect Ms. Morberg’s sense of privacy
- Render intimate, private, and personal information about her vulnerable to release
The court determined that the applicant’s evidence in support of a DNA test order primarily consisted of uncorroborated hearsay repeated by the applicant.
The court explained that the evidence did not indicate the deceased’s potential knowledge of the allegation that Ms. Morberg was not his biological daughter or the context of a conversation in which he allegedly said she was not his daughter in the earshot of a patient in the same room.
