Overview

In the world of estate litigation, few things are as volatile as a challenge to a beneficiary's parentage. When a parent dies without a will (intestate), the law dictates that children inherit the estate. But what happens when one sibling claims the other isn't a biological child at all? Can the court force a potential heir to submit to a DNA test to prove their lineage?

In the recent decision of Morberg Estate (Re), 2025 BCSC 2265, the Supreme Court of British Columbia drew a firm line in the sand, prioritizing privacy over "unsubstantiated family rumours."

The Case: Morberg Estate (Re)

The dispute involved two sisters, Wendy Garcia Reyes (the Applicant) and Amber Roberta Morberg (the Respondent). Their father, Roy Alvin Morberg, passed away in May 2025 without a will. Under the Wills, Estates and Succession Act (WESA), his estate—including his home—would typically be divided equally among his descendants.

However, Wendy sought to exclude Amber from the inheritance entirely. She alleged that their mother had an affair decades prior and that Amber was not Roy’s biological daughter. To prove this, Wendy applied for a court order compelling Amber to provide a DNA sample to be compared against a sample taken from the deceased.

The Evidence: Rumours and Secret Recordings

To support her application, Wendy relied on a variety of evidence that Associate Judge Robertson ultimately found unconvincing:

  • Deathbed Confessions: Wendy claimed that both their mother (in 2009) and the deceased father (in 2025) admitted on their respective deathbeds that Amber was not Roy's child.
  • Surreptitious Recording: Wendy secretly recorded a phone call with Amber the day after their father died, attempting to goad her into an admission.
  • Social Media Silence: Wendy argued that because Amber didn't respond to an inflammatory Facebook message accusing her of illegitimacy in 2015, she had admitted the fact.

The Court’s Analysis: Privacy Reigns Supreme

The Court dismissed the application, providing a critical analysis of the balance between the search for truth and an individual's right to privacy.

1. The High Threshold for DNA Orders

Under Supreme Court Civil Rule 7-6(1), the court has jurisdiction to order biological samples if it is "necessary or expedient to obtain full evidence." However, this is a discretionary power. The Court noted that while a DNA test (a cheek swab) is physically minimally invasive, it represents a significant intrusion on informational privacy.

As Associate Judge Robertson noted at para 45: > "...the data as to Ms. Morberg’s DNA sequence, the essence of her being, will be in storage and on a database over which she has no control."

2. Rejection of "Fishing Expeditions"

The Court distinguished this case from the recent decision in Hyslop v. Banks, 2024 BCSC 1848. In Hyslop, a DNA test was ordered because there was compelling evidence, including a "23andMe" test showing no biological link. In Morberg, the court found the evidence to be hearsay and conjecture.

3. Inadmissibility of Secret Recordings

Relying on the test in Finch v. Finch, the Court ruled the secret recording inadmissible. It was deemed to have low probative value and high prejudice, noting that Amber was grieving and being pressured. The Court emphasized that secret recordings in family matters erode trust and are generally viewed as "odious."

4. Social Media Silence is Not an Admission

Notably, the Court rejected the idea that ignoring a Facebook post constitutes an admission of guilt. The judge stated that a party may reasonably choose to disengage from public disputes about private matters.

Implications for BC Law

This decision reinforces that official documentation carries weight. Amber was listed on the birth certificate, and the deceased treated her as his daughter throughout his life. To overcome the presumption of paternity and force a DNA test, an applicant must provide compelling, objective evidence—not just family gossip or hearsay from interested parties.

Furthermore, this case serves as a warning regarding surreptitious recordings. BC courts are increasingly hostile toward secretly obtained audio in family and estate disputes, often excluding it to prevent the administration of justice from being brought into disrepute.

Practical Advice for Families and Heirs

Disclaimer: This blog post provides general information and does not constitute legal advice. If you are involved in an estate dispute, please consult with a qualified lawyer.

  • Draft a Will: The root of this dispute was intestacy. Had the deceased left a will defining "children" or specifically naming Amber and Wendy as beneficiaries, this litigation likely could have been avoided.
  • Evidence Matters: If you are challenging an estate based on parentage, you need more than memories of conversations. Objective facts, independent witnesses, or existing genetic data are usually required to trigger a court-ordered DNA test.
  • Respect Privacy: Courts are protective of genetic privacy. Demanding a DNA test is not a procedural right; it is an extraordinary remedy that requires justification.
  • Avoid Secret Recordings: attempting to "trap" family members on tape is a risky legal strategy that often backfires, damaging credibility and admissibility.