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In re Estate of Fechner

Court of Appeals of Kansas

November 2, 2018

In the Matter of the Estate of Chad Allan Fechner.

         SYLLABUS BY THE COURT

         1. If whether a person is an heir is contested in a probate proceeding, the district court has the authority to order DNA testing to help determine the contested issue.

         2. When factual questions about paternity are contested in a probate proceeding, the Kansas Parentage Act presumptions for determining paternity set out in K.S.A. 2017 Supp. 23-2208 apply whether or not any of the parties to the probate proceeding would have standing to bring a separate Parentage Act case.

         3. In deciding whether to order DNA testing to determine paternity in a probate proceeding, the district court should consider (1) whether the DNA evidence would be relevant; (2) whether providing a sample will unduly infringe on privacy rights; (3) whether there is a reasonable possibility of match or non-match; (4) the presumptions of paternity set out in the Kansas Parentage Act; and (5) the best-interests-of-the-child test from In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989).

         4. A district court abuses its discretion by failing to exercise that discretion based on a misunderstanding of the law.

          Appeal from Geary District Court; Charles A. Zimmerman, magistrate judge.

          David P. Troup, of Weary Davis, L.C., of Junction City, for appellant.

          Bruce D. Woolpert, of Topeka, for appellee.

          Before Leben, P.J., Green and Malone, JJ.

          LEBEN, J.

         Rita Young and Gary Fechner both claimed an interest in an estate as relatives of a man who died with no will and no living parents, siblings, or children. But Rita suggested Gary wasn't biologically related to the man and asked for DNA testing.

         The district court denied that request, concluding that it lacked authority to order such tests. After making that decision, the court heard evidence and sustained Gary's claim to a part of the estate.

         But we agree with Rita that the district court had the discretionary authority to order DNA testing. And a court abuses its discretion when it fails to exercise that discretion based on a misunderstanding of the law. See Green v. Unified Gov't of Wyandotte Co./KCK, 54 Kan.App.2d 118, 121, 397 P.3d 1211 (2017). So we will vacate the district court's judgment and send the case back for further consideration.

         Factual and Procedural Background

         When Chad Fechner died in 2014, his maternal aunt, Rita Young, thought she was his only living relative, so she opened a probate estate. But Gary Fechner filed a claim in the estate alleging that he was Chad's half uncle, a claim supported by the birth certificates of Chad's father and Gary-both had the same father, making them half brothers. If true, Gary would share in Chad's estate with Rita.

         Rita questioned whether those birth certificates and other records were accurate. The documents showed that Chad's father (and Gary's half brother) was Delwyne Fechner. Delwyne had died in 2002, but Rita had a letter a woman named Betty Lou had sent to Delwyne in 1999 saying that some "gossip going through Mrs. Hicklin[']s Beauty Shoppe here in Oakley" in the 1940s had been that Delwyne's real father was Earl Goble, not Willis Fechner. If so, Rita argued, Gary wasn't actually related to Delwyne or to Chad.

         Rita asked that the court order Gary to submit to DNA testing to prove his biological relation to Chad. Some of Chad's DNA was available because the ...


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