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Trusts and Estates

Estate of Herzog

Cite as E068698
Filed March 29, 2019, Fourth District

By Matthew R. Owens
Withers Bergman LLP
www.withersworldwide.com

Headnote: Estate Distribution – Heirship Petitions – Authentication of Foreign Birth Certificate 

Summary: German birth certificates offered to show relationship to decedent excluded from evidence due to lack of attestation.

After Leiselotte died intestate, her nephew, Winnfred, was appointed administrator of her estate.  Kemp, a firm specializing in locating heirs, held a power of attorney on behalf of Maurene, who claimed to be Leiselotte’s half-sister.  Kemp filed an heirship petition seeking an order that Maurene was Leiselotte’s sole heir.  In support of its claim, Kemp offered two German birth certificates—one for Leiselotte and one for Maurene—purporting to show they shared the same father.  Winnfred contended the documents were not official German records and had no consular authentication or certification.  The court excluded the birth certificates from evidence because Kemp did not present attested copies.  The birth certificates had rubber government stamps and were signed, but there was no attestation and there was no indication they were signed by public officers.  Without the birth certificates, Kemp could not meet its burden of proving that Maurene shared a parent with Leiselotte.  The court dismissed the heirship petition with prejudice.  Kemp appealed.   

The appellate court affirmed.  Under both the California Evidence Code and the Hague Public Documents Convention, an attestation must be accompanied by a final statement identifying who signed and stamped the foreign document and that person’s official position.  Kemp failed to demonstrate that the persons who signed the birth certificates held any official position, or that good cause existed to excuse compliance with this requirement.  Nor were the birth certificates self-authenticating as documents bearing a seal.  A mark does not qualify as a seal unless it is made by a public officer.  There was no evidence that the persons who signed the birth certificates were public officers.  Kemp suffered no prejudice as a result of the court’s bifurcation of the authentication issue since the result would have been the same had the issue been decided together with Winnfred’s competing heirship claim.

http://www.courts.ca.gov/opinions/documents/E068698.PDF

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