On January 24, 2006 the New York State Supreme Court Appellate Division , Second Department issued a decision in the Matter of James E. Davis , Deceased which speaks to the right of a purported non-marital child to DNA testing in order to establish paternity.

The petitioner, Kenyan G. Pencal claimed to be the non-marital son of the decedent and, in that capacity, sought to compel the administratrix to provide a compulsory accounting. The Appellate Division upheld a decision of the Kings County Surrogate to direct the New York City Medical Examiner to provide sufficient biological material of the decedent to enable DNA tests. The court further cited section 4-1.2(a)(2)(c) of the Estates, Powers and Trusts Law which provides that posthumous DNA testing is admissible to establish actual paternity.