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Keep the Casket in the Ground! Part 1

Updated: Jan 7, 2022

How North Coast Genealogy Used DNA Analysis and Records Research to help John Smith and Harry

A couple of weeks ago, an estate lawyer called me and said, “My client, John Smith, wants to inherit his dad’s house. To do that, he needs to prove that he is next of kin. The problem: he was raised by a single mom, and his dad, Harry Brown, isn’t on his birth certificate.”

I asked if there were any other records that might connect John to his father, like child support claims. He said: “No, John has family friends who can say that he is Harry’s child, but there is no real evidence. Harry recently died, unmarried, without a will, and John is his only child.”

The lawyer began to sound more and more distressed and then blurted out: “John says a DNA test would show he’s the son. Do we need a court order to dig up the body?”

Calm the Panic

The lawyer was understandably worried: “How do I get the court to agree to exhumation? What is the process at the cemetery? What am I supposed to say to the grieving family about interfering with Harry’s grave?” And what if he was cremated and there is no DNA to sample?”

Wow - a drastic solution and a lot of stress! I was able to calm him down and discuss a plan that did not involve Harry or his grave at all.

The NCG Toolkit The estate attorney called me because I locate missing and unknown heirs. If someone dies without a will, I help find the next of kin who inherits the estate. Or, if a descendant leaves her estate to her sister, but the contact information in the will is out of date, I find the sister’s current address so she can inherit. If no one in the family has seen their brother in 20 years but the lawyer needs him to sign papers, I will search for him.

When a search is successful, I find and provide the requested information to the client, allowing the legal matter to be resolved. On the rare occasion where I cannot locate someone, evidence of an exhaustive search demonstrates due diligence and allows the case to proceed.

I use a variety of techniques to find people and prove relationships, searching databases, courthouse archives and libraries. In this way I find legal documents, census records, property deeds and newspaper articles that show family relationships and leave a paper trail of proven family connections that can stand up in a court of law.

But What Happens When There is No Paper Trail? The answer, increasingly, is genetic analysis. DNA is a fascinating tool that has transformed the genealogy field. This is something that John Smith thought of too. He wanted a DNA test to prove that he was related to Harry Brown. This would work pretty smoothly if Harry was alive, but since he wasn’t, how could John compare his DNA with no sample from Harry?

How to Proceed

In the case of John and proving his relationship to Harry Brown, the first thing we did was get John to provide a DNA sample in a specialized lab, where the chain of custody was assured. Use of a court approved lab is essential if DNA is to be introduced in a legal case.

Then I found information about Harry Brown’s close family members, who would be a genetic match with John. If the Harry’s brothers and sisters took a DNA test at the same lab that tested John, the result would show that they were closely related, which would be possible only if John was Harry’s child.

A Roadblock

We were faced with a problem: Harry’s siblings would be the ones to inherit if he had no children. They had a financial interest in NOT testing. So they refused. It seemed like the case could not be resolved: no proven relatives, no case. But all was not lost! A Creative Solution

My solution was to have John test at a genetic genealogy site, such as Consumer DNA tests are extremely popular with the public, and according to a 2019 article in the MIT Technology Review, over 26 million people have taken a genealogy DNA test. Because Ancestry has an immense database, there was a good chance that someone who had tested there could be a genetic match. Perhaps one of Harry’s siblings or cousins had already done a test on the site and would show up as a close relative.

The results of this plan could not be used in court, both because the commercial sites have restrictions against this, and due to chain of custody issues. Because the sample is sent through the mail, not monitored directly by a lab at every stage, it lacked the chain of custody required by the court. As such, the court would probably not accept the results as direct evidence.

On the other hand, a commercial test would answer whether John is even related to Harry Brown. And though the court might not accept the test itself as evidence, my research combined with the genetic matches we found might be enough for the court to compel a DNA test from Harry’s siblings who had previously refused. I am still waiting for the DNA testing results but am hopeful for a positive outcome. I will discuss how I prepared for the test matches in a companion post.

Katharine O'Connell is a forensic genealogist and the owner of North Coast Genealogy. Katharine has solved over 150 probate cases for clients such as national banks and estate planning attorneys.

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