## Facts

- Robert Nasert died domiciled in Richmond County, New York, on June 27, 2001.
- A will dated August 27, 1996, was offered for probate by Jennifer A. Bragerton, the decedent’s adopted daughter, who was named sole beneficiary and nominated executrix.
- S.M.K. claimed to be the decedent’s nonmarital daughter and sought to oppose probate, but needed distributee status to have standing.
- The court held a paternity hearing under EPTL 4-1.2 to determine whether S.M.K. was the decedent’s child for intestacy and standing purposes.
- The decedent’s identical twin brother, Carl W. Nasert, testified and agreed to DNA testing to assist the paternity determination.
- DNA testing compared Carl and S.M.K., producing a reported 99.96% probability of paternity if Carl was the decedent’s identical twin and was not himself the father.
- The parties did not dispute that Carl and the decedent were identical twins, and the evidence indicated the child’s mother had sexual relations with the decedent, not Carl.

## Issues

1. Whether DNA testing of a decedent’s identical twin brother, combined with other evidence, can establish paternity by clear and convincing evidence under EPTL 4-1.2.
2. Whether such proof makes the alleged nonmarital child a distributee with standing to file objections to probate.

## Decision

- The court found the DNA results derived from testing the identical twin, together with corroborating evidence, established paternity by clear and convincing evidence under EPTL 4-1.2.
- The court determined S.M.K. was a distributee of the decedent.
- The court granted S.M.K. standing to oppose probate and proceed as an objectant.
- The ruling addressed standing and heirship for probate participation, not the ultimate validity of the will.

## Legal Principles

- A nonmarital child must satisfy EPTL 4-1.2’s requirements to inherit from an alleged father and to qualify as a distributee in probate.
- Paternity may be proven by clear and convincing evidence using genetic marker evidence together with other evidence; the proof is not limited to genetic testing performed directly on the deceased father during life.
- DNA testing of collateral relatives may be used to prove paternity where direct testing of the decedent is unavailable.
- Where an identical twin shares the decedent’s genetic profile, testing the twin can function as highly probative genetic evidence if additional proof eliminates a realistic possibility that the twin is the biological father.
- Genetic testing is evaluated alongside traditional proof (including testimony about sexual access) to determine whether the clear and convincing standard is met.

## Conclusion

The court held that DNA testing of the decedent’s identical twin brother, supported by undisputed facts about the twin relationship and the mother’s lack of sexual contact with the twin, proved paternity by clear and convincing evidence under EPTL 4-1.2 and conferred distributee status and standing on S.M.K. to contest probate.


Matter of Nasert, 192 Misc. 2d 682 (Sur. Ct. Richmond Cnty. 2002)