DNA profiling is now a widely used method to convict the perpetrator of a crime to a high degree of accuracy. Yet, despite its newfound dramatic appeal, it was originally developed as a means to provide genetic evidence of paternity as early as the mid-1970s; this assessment, known as HLA testing, was a powerful, if problematic, tool to identify biological relationships.
The method employed to test DNA has improved dramatically, now boasting a 99.99% accuracy, so providing an attractive tool to quickly and precisely give evidence in cases where the paternity of a child is disputed. This near perfect accuracy has become indispensable in court cases in recent years, due to modifications in legal jargon removing all distinctions between legitimate and illegitimate children.
The current law in the UK, since the 1987 Family Reform Act, states that if a will leaves everything ’to the children’, anyone who can prove parenthood is eligible to claim on the estate. Only recently in new law in Italy, all children whether born in or out of “wedlock” are seen as equal under the law of 10th December 2012 n.219) which came in to force January of 2014. This removed all differences between children, using the word ‘figlio’ as an umbrella term rather than illegitimate and not. All children therefore become forced heirs, and so have a guaranteed quota in the estate of their parents, whether they are named in the will or not. Despite the benefits of this amendment, it has resulted in complicated cases between illegitimate heirs who, despite being unknown to the family previously, are now able to contest their succession rights.
As a result, the number of cases where either previously unknown children, or children who were not acknowledged by the rest of the family, have appeared once their presumed parent had passed away in order to make a claim on the family assets, has seen a substantial rise in Italy: if the child can prove paternity, then they have a legal requirement to a share in the estate.
DNA testing is an increasingly useful tool in these claims, as it provides irrevocable proof that the child should be a forced heir and therefore is entitled to their fair share of the property. Indeed, claims to paternity and therefore succession rights are now legally entitled to a DNA test in Italy, due to the requirement of Article 116 of the Codice di Procedura Civile that the judge make a decision using all possible objectivity. This entails the use of scientific methods rather than their own discretion to come to a just conclusion. Therefore, if there is an option to make a decision based on hard evidence, such as deciding the paternity of a child through the use of a DNA test rather than subjectively, it must be carried out by law.
Although will disputes are now commonplace due to the ever evolving nature of families, the reformation of these laws have been questioned by some, despite them showing a progressive treatment of legitimate and illegitimate children. Some scholars have noted that there may be explosive consequences that affect rights of succession, because it means anyone who can prove paternity is legally allowed to claim succession.
This can lead to family disputes as highlighted by the long contested case in the succession of Sir Harold Acton, known as the “Villa La Pietra” case; it may appear unjust to bequeath a share in a large estate to an unknown children of an earlier infidelity.
Whilst previously it seemed unlikely that the presumed illegitimate child, Leana Beacci, of Sir Harold’s father Arthur Acton, would have any grounding in the court of law regarding her right to the estate, the change of the filiazione law in 2012 allowed her legal parity with any legitimate child if she was able to prove paternity. DNA testing provided an accurate means by which to do so, thus allowing Beacci’s daughter Dialta Orlandi to prove her status as Harold Acton’s half-sister, and begin a legal battle in order to gain what she believed was hers to inherit, including a share Villa La Pietra, which he had bequeathed in his will to New York University in 1994.
This is echoed in cases that have recently arisen of a similar nature, because children who were previously cast aside as illegitimate are able to claim stronger inheritance rights. For example, a succession case brought in 2006 was decided by the Court of Appeal of Lecce in 2015 (Section I, Court of Appeal of Lecce, judgement of 15th April 2015, case no. 95/2006) showed a woman claiming to be the illegitimate daughter of an heir to a large Italian estate resorting to a DNA test in order to prove her status as leggitima – i.e. legally entitled to a share. Although the defendants argued the difficulty of carrying out this test on a cadaver, the proliferate use of DNA testing means that it is now able to determine paternity even from a corpse. DNA tests have since become the norm in providing indisputable evidence regarding the familial ties between child and father, causing concern for wealthy families desperate to keep their property within ‘legitimate’, or previously known heirs.
As a result, families with a complicated history have begun to cremate the bodies of the deceased to try and prevent family estates from being given to a child who was unnamed in the will. For example, Carlo Caracciolo – Prince of Castagneto and co-founder of La Repubblica, was cremated just one day after his death by his principal heir so as to avoid the possibility of a DNA test preventing her from her generous succession rights. The scientific method is such that now, if the body is cremated, it is possible to carry out a DNA test as long as bones or teeth are present, although it is very difficult and usually is only able to determine the gender of the deceased. Caracciolo was rumoured to have led a promiscuous life, leading to the possibility of many illegitimate children claiming heirship and therefore reducing the assets the named heirs would have available to them. By cremating the body almost immediately, it becomes difficult for illegitimate children to make a substantial paternity claim.
Consequently, DNA testing has become frequent in cases where illegitimate children are claiming succession rights because it provides effective evidence for their relationship with the owner of an estate, and allows the judge to make a fully supported impartial decision. Despite the often long time frame of these cases, highlighted by the La Pietra case, in that cases can take more than 10 years to reach the Supreme Court, the Court of Cassazione in Italy, the petition may be continued by the children of the presumed heir within two years of their death, allowing the claim for succession rights to continue for years on end.
