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DNA testing, which is undoing many a criminal conviction these days, has the potential to rip the lid off a paternity settlement sealed long ago, one that plays a role in how a $350 million trust will be doled out to heirs of a Johnson & Johnson Corp. founder. New Jersey’s highest court heard arguments last Tuesday on whether a child born to John Seward Johnson Jr. was entitled to share in the fortune, despite questions about her paternity. IMO Trust of John Seward Johnson, A-69/70-99. John Seward Johnson Sr. created the trust in 1961 to benefit certain charities, with the remainder to be dispersed to four of his six children, “their spouses and their issue.” In 1965, one of the children, John Seward Johnson Jr., divorced his wife, Barbara, acknowledging in the settlement that Jenny Anne Johnson, a daughter born during the marriage, was his own, although he suspected she was a bastard. In 1997, when the trust was due to be carved up, the other beneficiaries filed objections. Today, relatives battling over the millions want Jenny Anne to submit to blood testing to settle the question once and for all, irrespective of the prior acknowledgment. The case hinges on how the justices interpret the New Jersey Parentage Act, N.J.S.A. 9:17-53, which states, at paragraph (a): “The judgment or order of the court or a Certificate of Parentage determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.” Conducting blood tests to determine Jenny Anne’s eligibility to inherit does not disturb Johnson Jr.’s prior declaration of paternity, his attorney, Richard Altman, contended. “Membership in the class flows from what Johnson Sr. wanted,” argued Altman, a partner with Pellettieri, Rabstein & Altman of Princeton. “He used the word ‘issue’ to determine the beneficiary class. At that time, that meant blood.” Justice Peter Verniero suggested that the legislature may have had this exact type of scenario in mind when it enacted the proviso that seems to bar any challenge to the court determination. “It seems that the acknowledgment must carry some legal significance beyond the divorce,” Verniero said. Altman maintained that using the acknowledgment as a basis for determining heirs to the trust would contravene Johnson Sr.’s intent. “He didn’t intend a legal fiction,” Altman said. “He intended his blood.” So far, blood hasn’t prevailed. Middlesex County Chancery Division Judge C. Judson Hamlin ruled in September 1996 that Jenny Anne was “issue” and therefore a beneficiary and that the Parentage Act bars any challenge to her paternity. Further, Johnson Jr. himself was blocked by res judicata and collateral estoppel. Johnson Sr.’s grandchildren, Eric and Hillary Ryan, and Johnson Jr. appealed the ruling, demanding that Jenny Anne submit to blood tests to establish paternity. So far, she has refused. Joseph Mahon, a partner with Princeton’s Hill Wallack representing the Ryan grandchildren, argued that the doctrine of probable intent should apply and that Johnson Sr.’s objective in establishing the trust was to have his blood descendants as beneficiaries. DNA testing can provide irrefutable evidence of paternity with results that can be more than 99.9 percent certain, Mahon argued before the justices. “That’s pretty persuasive,” Mahon said. “That’s more persuasive than a prior adjudication.” Verniero, however, questioned why the court should disregard a prior judgment, which is supposed to be final and conclusive “for all purposes,” according to the Parentage Act. Justice Virginia Long chimed in that all judgments should have the equal weight. “There is no difference between a judgment reached by trial, by settlement or by a default,” Long said. Directing the court’s attention to the statutory language, Mahon contended that prior adjudication is only one way of determining paternity under the Parentage Act, so the court could consider other information, such as DNA evidence. But former state attorney general Robert Del Tufo, representing Jenny Anne, said that no test is needed because the court already has made a final determination as to paternity. Citing the Parentage Act that the court’s determination is “determinative for all purposes,” Del Tufo, of Skadden, Arps, Slate, Meagher & Flom in Newark, urged the court to find that the prior adjudication is “binding upon the world.” Attacks on Jenny Anne’s paternity from collateral parties — those who were not a part of the original divorce settlement proceedings — are also inappropriate because such matters must be left to the immediate family to resolve, he said. “Once the status of a person is determined, that’s it,” Del Tufo. Justice James Zazzali questioned whether the grandchildren who now challenge the prior determination had an opportunity to be heard. Third parties could not have participated in the divorce matter, Del Tufo conceded. He went on to say that the state has a public policy interest in encouraging finality of judgments, so that parties are not subject to repeated collateral attacks once a court has determined paternity status. Thomas Bitar, representing Jenny Anne’s children, agreed that the 1965 status determination is final and that all subsequent challenges to its validity are precluded. “It shouldn’t be that the child’s legitimization is subject to constant attack,” said Bitar, a partner with Dillon, Bitar & Luther in Morristown. Chief Justice Deborah Poritz pondered whether policies that developed in a time before DNA testing was available are still workable today.

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