Matter of Janis

In Matter of Janis (157 Misc 2d 999, affd 210 AD2d 101), a child sought an order in a probate proceeding to exhume the remains of her putative father to obtain material for DNA tests, in her attempt to establish standing as distributee to contest the will. Denying the request, Surrogate Roth noted that the EPTL expressly refers to genetic tests that had been administered to the putative father, and construed the statute as requiring such tests to be administered during the decedent's lifetime to satisfy the clause (D) test. At the same time, however, the court recognized that postdeath genetic marker tests might be admissible under clause (C) of EPTL 4-1.1 (a) (2), a companion clause that provides for a nonmarital child to inherit on a showing of (1) "clear and convincing" evidence of paternity together with (2) evidence that the putative father "openly and notoriously" acknowledged the child as his own. (Matter of Janis, 157 Misc 2d at 1001.)