On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Union County, Docket No. M-6450.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
This is a probate dispute. Peter Bulhack (decedent) died intestate on February 6, 2004. He was not survived by a spouse, children, parents, siblings, or grandparents. Plaintiffs, Mariya Aleksandrovna Bulgak Volchetskaya, Olga Aleksandrovna Bulgak Tananko, Aleksandr Petrovich Virkovskiy, Mariya Mikhaylovna Bulgak (Maria Bulgak), Irina Virkowsky Slobodchikov, Olga Virkovskaya, Sergey Virkovsky, and Anatoliy Virkovsky, initiated this action against decedent's estate, seeking to share in the value of the estate based upon their claims as decedent's paternal cousins. The estate rejected plaintiffs' relational assertions, concluding decedent's maternal cousins, who all lived in the United States, were his only rightful heirs.
Plaintiffs, who all reside in Belarus, waived their right to appear in support of their cause, instead consenting to be limited to proofs attached to the complaint. The estate moved for summary judgment. In a written opinion, the trial court found the eight plaintiffs, as well as the eight U.S. heirs, were decedent's descendants and ordered the division of the estate accordingly. On appeal, the estate maintains plaintiffs' proofs may have adequately established their lineage; however, they failed to confirm claimants survived decedent.
We conclude the powers of attorney in fact evince plaintiffs' survivorship. Moreover, those documents could properly be considered by the trial court. We remand to the trial court for further review and factual findings only on whether the powers of attorney offered by plaintiffs were fully and properly executed.
These are the relevant facts. At the time of his death, decedent was eighty-two years old and resided in Union County.
He had not prepared a will, had never married and was without issue. In November 2004, Letters of Administration were awarded to Robert Korzik,*fn1 decedent's maternal first cousin once removed. The next of kin listed on the application for administration included decedent's first cousin Anne Korschek (now deceased), and first cousins once removed Robert Korzik, Michael Weingarten, James Korzik, Thomas Korzik, Walter Korschek, Jr., Barbara Korschek-Stainback and Kathleen Korzik-Berenbroick (collectively the U.S. heirs).
In June 2006, Pennsylvania counsel for plaintiffs, Marc Schwartz, contacted the representative of the estate. Mr. Schwartz advised he was pursuing his clients' interests and each had appointed "Robert A. Blake, Jr. and/or Robert A. Blake, Sr., USA,*fn2 or his substitute, or substitutes" as attorney in fact. The authorizations had been executed in March or April 2005. Mr. Schwartz provided documentation of his clients' ancestry and requested information regarding the assets of and distributions made from the estate. Included in the transmitted package were copies of sealed birth, death and marriage certificates, each of which were accompanied by an English translation bearing an apostille*fn3 executed by a representative of the Ministry for Foreign Affairs, Republic of Belarus.*fn4
A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, provided that either an apostille is affixed to the document certifying its genuineness pursuant to international agreement to which the United States is a party or the document is accompanied by a final certification as to the genuineness of the signature and official position (1) of the executing or attesting person, or (2) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation . . . . If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification[.]
The package of information also contained a genealogical chart prepared by Blake & Blake, illustrating the asserted ancestral relationships between plaintiffs and the decedent. On the chart, the designation "POA" was included on the blocks listing the eight plaintiffs. It is clear from the transmittal correspondence that the designation referred to "power of attorney."
Despite negotiations, a resolution was not attained. On August 19, 2008, plaintiffs filed an Order to Show Cause in the Chancery Division, Probate Part, seeking a declaratory judgment that, as decedent's paternal first cousins once and twice removed, they were "interested persons," pursuant to Rule 4:87, entitling them to receive information regarding the value of the estate, a copy of the administrator's accounting and their distributive shares. The complaint traced decedent's father's lineage, accompanied by the birth, marriage and death certificates of ancestors, to show plaintiffs' relational connection to decedent (the Belarus records).
A discovery dispute arose when the estate served plaintiffs with notices to appear for depositions in New Jersey. Plaintiffs filed a motion for a protective order, arguing the estate's request was oppressive and unduly burdensome; not only would plaintiffs be required to travel from Belarus, but also they must request visas and passports, the granting of which was not guaranteed. Additionally, they would incur travel and ...