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How the DNA Helix Twists on Privacy, Property, and Paternity in the Probate Courts

by Kenneth H. Ryesky August 20th, 2014 5:27 am

Following an adventurous life that brought him from Vietnam to America, Truong Dinh Tran settled in New York, where he invested in various business and real estate ventures, and died a centimillionaire in 2012. Having left no last will and testament to dispose of his worldly assets, his property will be disposed of under New York's intestacy laws. Truong was known to have had intimate relationships with multiple women during his lifetime. Not surprisingly, five persons alleging that they are Truong's grandchildren now seek a piece of the pie.

At the behest of the five individuals, a hair sample was removed from Truong's body by the New York City Medical Examiner's office, and was given to the DNA Diagnostics Center laboratory for testing. The laboratory, obviously aware that sensitive legal issues may explode in its face in light of the conflicting requests from various parties, has been reluctant to cooperate with the five putative grandchildren or anyone else.  The five have brought an action in the New York County Surrogate's Court, praying for an order requiring the Temporary Administrator to authorize the DNA Diagnostics Center to do the testing on the hair sample, and, if such is impracticable or inconclusive, to authorize the lab to use information from prior DNA tests to determine kinship.

The Court specifically found that the hair sample is an asset of the Estate, and that the Estate fiduciary (in this case the Temporary Administrator) alone is empowered to direct testing on the sample. The Court specifically authorized the Temporary Administrator to direct the appropriate actions with respect to any DNA samples of the decedent. The Court declined to order any specific tests until a viability study indicates which particular procedures would likely be productive.

The Court directed that the costs of the testing be borne by those seeking such tests, but without prejudice to demand reimbursement from the Estate.

New York's Surrogate's Court Procedure Act § 2225(b) sets the standard. It mandates "that diligent and exhaustive efforts have been made from all available sources to ascertain the existence of distributees, or members of a class of devisees, legatees or beneficiaries" before the Court can determine that no such individuals exist.

Under circumstances such as those in Tran's Estate, DNA samples are among the "available sources" in which "diligent and exhaustive efforts" be made. The information relevant to DNA testing carries obvious privacy issues that reach well beyond the construction of family tree charts, most notably personal medical issues not only of the decedent, but of the surviving putative heirs. Mismanagement of the decedent's estate, which, in days of yore, risked little more than the wasting and squandering of Estate assets, now implicates personal information and privacy concerns of individuals other than the decedent. The "diligent and exhaustive" search process needs, in the first instance, to be managed by a responsible and accountable individual.

The Tran case is useful precedent for doing so by explicitly defining the DNA sample held by the lab as an Estate asset, thereby placing the estate fiduciary in the driver's seat for conducting the search.

 

Matter of Tran, 2014 NY Slip Op 32056(U), N.Y.L.J., 8 August 2014, p. 22, col. 3, 2014 N.Y. Misc. LEXIS 3501, (Surr. Ct. N.Y. Co., 2014).