A court of appeal has revoked a court order allowing the remains of the late Tumas Fenech to be exhumed for the purpose of genetic testing.

The request had been made by a man claiming that the deceased business magnate was his natural father. 

In a judgment handed down on Thursday, the superior court upheld an appeal filed by Fenech’s heirs following a decision by the Family Court in June last year in a lawsuit instituted by Victor Buttigieg.

Buttigieg, an inmate serving time behind bars over a drug-possession conviction, was seeking to obtain a variation of his birth certificate once genetic testing proved his long-standing suspicion that Tumas Fenech was his biological father. 

The applicant, born in September 1972, had long harboured a suspicion about his true paternity, in spite of the fact that his birth certificate showed him to be the son of his mother’s husband.

The man was always brought up as the natural offspring of the Buttigieg couple.

However, his suspicions lingered and in 2012 DNA tests undertaken by Buttigieg and his brother showed that the siblings did not share the same paternity. 

The applicant’s suspicion was finally confirmed through his mother’s whispered confession on her deathbed about her alleged intimate relationship with Fenech, her former boss.

The wealthy businessman, known for his charitable deeds, would shower Buttigieg with sweets and cash gifts and had also gifted the applicant with a new car on his 18th birthday.

Fenech had even organised a party for his employee’s son at one of his hotels and those facts led the Family Court to observe that the relationship between the former businessman and the applicant’s mother went beyond a simple work relationship. 

The applicant’s suspicion was justified, the first court had concluded, ordering the exhumation of Fenech’s remains so that a sample could be taken to determine once and for all the paternity issue.

However, that decision was reversed on appeal.

The court, presided over by Mr Justice Giannino Caruana Demajo, and including Mr Justices Tonio Mallia and Anthony Ellul, upheld a preliminary plea by Fenech’s heirs based on a provision of the Civil Code. 

Article 81 of that code stated that “no person may claim a status contrary to that attributed to him by the act of birth as a child conceived or born in wedlock and the possession of a status in conformity therewith”.

The law was clear and allowed no room for interpretation, said the judges.

The issue of paternity could not be decided upon in a vacuum but was to be linked to a change in the applicant’s birth certificate which was the ultimate purpose of the search for a person’s natural father.

Fenech’s heirs argued that, so far, Buttigieg had failed to produce sufficient evidence to raise doubt that the registration of his birth did not reflect reality.

The respondents insisted that Buttigieg had not sufficiently proved the alleged link between himself and their deceased relative so as to justify the exhumation for genetic testing purposes. 

The court of appeal upheld this argument and, while revoking the Family Court decision, held that the request for exhumation would only be considered after the court establishes whether Buttigieg possessed a status that matched the facts registered on his act of birth.

The court sent the case back to the Family Court to hear evidence accordingly.

Lawyers Robert Thake, Karl Briffa and Gege Vella assisted Fenech’s heirs. 

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