A Can of (DNA) Worms?

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Chris Green
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A Can of (DNA) Worms?

Postby Chris Green » 27 Nov 2015, 07:09

A Court case current in England may have consequences for several ancient families. If the scion of a junior branch of the family is found by DNA analysis to be directly related to, say, the third Earl of Grumpy, but the sixth Earl is not, who inherits the Grumpy lands - and more importantly for heraldists - who has the right to the undifferenced Grumpy arms?

http://www.telegraph.co.uk/news/uknews/scotland/12015334/DNA-ruling-over-illegitimate-heir-could-shake-up-British-title-system.html

Answering my own question, I would say that in the case of a Peer, it is whoever the House of Lords recognises to be the Earl. The current case involves a Scottish Baronetcy, which is not a Peerage, so the House of Lords is not involved. But once the Supreme Court has ruled, the Court of the Lord Lyon will need to take a stance on the clan and heraldic aspects. As for the rest of us armigers ... ???
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Re: A Can of (DNA) Worms?

Postby Ton de Witte » 27 Nov 2015, 08:47

a) Is DNA a factor in deciding who is the heir ?
b) if it is, is it then the most important factor in legal terms ?
c) how long ago was the wrong person permitted to have the title ?
d) if it was long ago is it then fair to punish the present holder for things done by a an ancestor ?
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Re: A Can of (DNA) Worms?

Postby Martin Goldstraw » 27 Nov 2015, 09:17

I don't know if this is relevant but, in regard to the question "how long ago was it" , when the Lord Lyon recognizes a claimant to a long dormant chiefdom he adds the caveat "for ought yet seen" and it is generally understood that a period of 20 years is allowed for that which was not seen at the time of the determination to come forward after which the claim becomes set in stone. Of course, the Lord Lyon can be challenged either by appeal or judicial review but the upper court will always have in mind that he is exercising the Royal Prerogative and so is almost always upheld.
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Re: A Can of (DNA) Worms?

Postby Arthur Radburn » 27 Nov 2015, 11:43

This is certainly an interesting case to follow. The judgment will be published here : https://www.jcpc.uk/decided-cases/index.html.

I should think the histories of England and Scotland -- and many other countries too -- are jam-packed with cuckoos who have inherited nests to which they had no biological right. Be those nests thrones, titles, estates, hereditary offices, or coats of arms.

Perhaps legislation is needed to regulate the use of DNA in determining heirship. If DNA evidence is to be allowed, or required, though, there'd need to be a time limit. One can't go back and rewrite history and dispossess people who inherited in all good faith. There's also the reputations of the cuckoo's parents to be considered.
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Chas Charles-Dunne
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Re: A Can of (DNA) Worms?

Postby Chas Charles-Dunne » 27 Nov 2015, 12:38

In English common law, if a man accepts a child as his own, then it is his own.

The Percys (Dukes of Northumberland) have bred out twice in their history. That is to say, they produced no male heirs in a generation. The title and any holdings would revert to the crown. To prevent this calamity, the duchess (of some advanced years) went on retreat to a local nunnery to pray for Divine intervention. Well, miracle of miracles, she returned with a very healthy baby boy (a wet nurse and the wet nurse's husband). The child was immediately claimed by the Duke as his son - tragedy averted.

Lo, and behold! it happened again one hundred years later. What a lucky family the Percys are!
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Re: A Can of (DNA) Worms?

Postby Chris Green » 27 Nov 2015, 12:58

Perhaps legislation is needed to regulate the use of DNA in determining heirship.


I think this is why HM The Queen has been keen to have this case tested by the Supreme Court. The Court's judgement will guide lower Courts in future.
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Re: A Can of (DNA) Worms?

Postby Arthur Radburn » 27 Nov 2015, 14:18

Chris Green wrote:
Perhaps legislation is needed to regulate the use of DNA in determining heirship.


I think this is why HM The Queen has been keen to have this case tested by the Supreme Court. The Court's judgement will guide lower Courts in future.
The articles in the Telegraph certainly give the impression that HM takes a personal interest in this case, and that it was her idea to refer it to the Judicial Committee of the Privy Council, rather than her simply signing a referral sent to her by the responsible cabinet minister (which I take to be the actual case). Case law rather than statute law may well be a better option from a strategic point of view though, as it is non-partisan.
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Re: A Can of (DNA) Worms?

Postby Martin Goldstraw » 27 Nov 2015, 15:37

By referring it to the Courts, H.M. has neatly, and correctly in my humble opinion, delegated (sidestepped) responsibility for the decision. If there is to now be any unintended consequences they will not be a result of anything H.M. has done or said and the Courts can deal with it.

Referring back to Chas' note re: "if a man accepts a child as his own" etc this is no doubt where the old saying "I am my father's son .. according to my mother" comes from. ;-)
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Re: A Can of (DNA) Worms?

Postby Chris Green » 27 Nov 2015, 15:38

Sorry I was confused by Neuberger being a Supreme Court Judge. The case is of course being heard by the Judicial Committee of the Privy Council.
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Re: A Can of (DNA) Worms?

Postby JMcMillan » 27 Nov 2015, 16:20

I think the newspaper story sensationalizes the queen's role. Turning her formal signature on a document put in front of her by those responsible for dealing with such issues is not taking a deep personal interest in the matter. Succession to peerages is a matter of law, in which the sovereign cannot properly interfere. At least that' s how I understand it.
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