April 14, 2011
IN THE MATTER OF THE ESTATE OF PETER BULHACK, DECEASED.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 5, 2011
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 accommodation expenses. Plaintiffs alternatively proposed that estate counsel conduct depositions in Belarus.
The estate cross-moved to strike plaintiffs' complaint, arguing plaintiffs' failure to attend depositions crippled their ability to proceed. The estate insisted it needed plaintiffs' depositions "to verify the individuals are not fraudsters."*fn5
The court denied the request for a protective order. After finding "the plaintiffs ha[d] waived their rights to appear in support of their case either by oral testimony or by written certification and . . . [were] relying solely on the records obtained from Belarus[,] which are annexed to [the complaint][,]" the motion judge ordered plaintiffs' proofs would be restricted to the Belarus documents.
The estate moved for a summary judgment dismissal of plaintiffs'
complaint and entry of an order to settle the final distributions and
conclude the estate administration. Plaintiffs submitted a legal
memorandum in opposition. Attached to that brief were the signed
powers of attorney given to Mr. Schwartz by each plaintiff.*fn6
The court allowed telephonic argument.*fn7
In a written opinion, the judge found the U.S. heirs as well as the plaintiffs were decedent's cousins and entitled to inherit under the intestacy statute. In a detailed review of the Belarus documents, the court determined plaintiffs were "all paternal first cousins once  and twice removed [who] would inherit from the decedent's estate." The final judgment, entered on June 22, 2009, stated:
[O]n the maternal side, Anne Korschek is a first cousin, while Michael Weingarten, Walter Korschek, Jr., Barbara Korschek, Robert Korzik, James Korzik, Thomas Korzik, and Kathleen Korzik Berenbroick are declared first cousins once removed; and
IT IS FURTHER ORDERED THAT on the paternal side, Maria Bulgak,*fn8 Olga Bulgak, Alexandr Virkovskiy, and Maria Bulgak are declared first cousins once removed; while Irina Virkovskiy, Olga Virkovskiy, Sergey Virkovskiy, and Anatoliy Virksovskiy are declared first cousins twice removed; and IT IS FURTHER ORDERED THAT the Administrator shall distribute the Estate as follows: 3/7 of the Estate to the paternal heirs and 4/7 of the Estate to the maternal heirs[.]
The court ordered the administrator to distribute the estate or file an application for a stay and an appeal. The estate did so and the court stayed its order. This appeal ensued.
"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Accordingly, we do not disturb the "factual findings and legal conclusions of the trial judge unless convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms, supra, 65 N.J. at 484.
We do not accord the same deference to determinations of law, which instead are subject to a de novo review. Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002) (internal quotations and citation omitted). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Legislature has determined the requisites to "the devolution of title and the distribution of intestate property." In re Estate of Rozet, 207 N.J. Super. 321, 326 (Law Div. 1985); see also In re Holibaugh, 18 N.J. 229, 235 (1955). N.J.S.A. 3B:5-4 provides:
Any part of the intestate estate[,] . . . if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:
e. If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation[.]
For the purposes of intestate succession, an individual must establish, by clear and convincing evidence, not only descendancy, but also that he or she has survived the decedent. A "surviving descendant" is defined by N.J.S.A. 3B:5-6(a)(2) as "a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent under N.J.S.[A.] 3B:5-1[,]" which requires a descendant to survive the decedent by 120 hours.
On appeal, the estate seeks to dismiss the complaint, contending the trial court abused its discretion by ignoring the January 22, 2009 order, which curbed plaintiffs' proofs. The estate accurately identifies that "[t]here were no other Belarus records attached to the complaint" but birth, marriage, and death certificates. Notably, however, the estate concedes the court's findings regarding the familial relationship between plaintiffs and decedent. The estate's single argument urges reversal of the order because plaintiffs have not presented "concrete proof of survivorship," suggesting the Belarus documents alone do not show plaintiffs survived decedent. In this regard, the estate notes the court's opinion made no specific reference to the powers of attorney and made no separate finding that each plaintiff had survived decedent.
Plaintiffs counter these contentions, arguing the court properly took notice of the powers of attorney annexed to their opposition to the estate's request for summary judgment. Relying on these written designations executed long after decedent's death, plaintiffs maintain the fact of their survival is unmistakable.
The estate supports its position by citing authority that discusses the necessity of compliance with the statutory requisites for the formal execution of a will, to avoid "possible fraud, perjury, mistake and the chance of one instrument being substituted for another." In re Estate of Peters, 107 N.J. 263, 282 (1987). The analogy is erroneous.
In Peters, supra, a will was offered for probate that lacked the necessary witnesses prescribed by N.J.S.A. 3B:3-2. Id. at 265. The Court affirmed our conclusion that "the [trial] court had no power to excuse the failure to have the will subscribed by the witnesses as required by the statute." Ibid. (citing In re Estate of Peters, 210 N.J. Super. 295, 308-09 (App. Div. 1986)). In its discussion, the Court emphasized the necessity for strict compliance with the statutory formalities mandated to assure a will's validity. Id. at 282.
In this matter, we are not concerned with whether a document speaks for a testator, but rather focus mainly on the legitimacy of plaintiffs' descendancy claims. Accordingly, we draw no parallels between the necessary proofs evincing plaintiffs' lineage, as constituted by official records of birth, death and marriage, and the probate of a paper purporting to be a testator's will. See Kimley v. Whittaker, 63 N.J. 235, 238 (1973) (noting "since intestate property passes by law, not by will, the statute, not the testator, controls its distribution"). More important, the estate does not challenge plaintiffs' lineage, it challenges the fact that plaintiffs' were living on February 12, 2004.
We reject the estate's intransigent view of the record, for several reasons. First, the U.S. heirs' declaration that they were unaware of plaintiffs is of no moment. To inherit under the intestacy statute, plaintiffs need not show they had a relationship with decedent or even that he knew them; they need only show their lineal relationship, which they have done.
Second, in his June 29, 2006 introductory correspondence sent to the estate, Mr. Schwartz referenced the authority to act for plaintiffs. He explained the eight plaintiffs had executed "[p]owers of attorney in our favor." The documents were signed in the presence of an officiate equivalent to a notary public, accompanied by an apostille. Mr. Schwartz also advised the original documents were sent to New Jersey counsel, who would make them available upon the estate's request. From the first announcement of plaintiffs' claims, the estate was informed they had appointed attorneys-in-fact and the original documents were available for inspection. The estate's notice of plaintiffs' authorizations, long before the litigation commenced, reflected they were alive in 2005 and 2007. Plaintiffs should not be prejudiced because the administrator declined to examine these proofs.
Third, once litigation started, the court was informed plaintiffs vested authority in Messrs. Blake or their substitute by way of the powers of attorney. This likely explains why the court felt it unnecessary to mention in its opinion that plaintiffs did not predecease decedent.
Finally, as a practical matter, counsel was engaged by his clients, albeit through intermediaries (i.e., Messrs. Blake), and has repeatedly represented that his clients are living. We cannot accede to the estate's suggestion to root our determination in a technicality and ignore the obvious. The argument assaults equity and fairness. Accordingly, it is appropriate that the court consider the executed powers of attorney when determining plaintiffs' survival of decedent.
As plaintiffs appropriately point out, the administrator, as the fiduciary administering the intestate estate, ignored the obligation to locate decedent's paternal relations. Plaintiffs learned of their relative's passing, came forward asserting their entitlement to participate in the distribution of the estate, thus, triggering the administrator's affirmative obligation to "identify and locate the[se] individuals." N.J.S.A. 3B:5-5.1.
In our review of this matter, equity and fairness cannot be ignored. See Brenner v. Berkowitz, 134 N.J. 488, 512 (1993) (noting the inherent common law power of the Chancery Division to achieve equity). Plaintiffs have clearly and convincingly established that they are decedent's heirs and must be given their intestate share of the estate. Accordingly, plaintiffs may rely on the previously disclosed authorizations used to initiate the litigation, as verification that they survived decedent.
Nevertheless, we conclude a remand is appropriate for the limited purpose of assuring the completeness of the record. In its review, the trial court is requested to examine plaintiffs' powers of attorney to ascertain each one satisfies the self-proving requisites of Rule 902(c). Additionally, the court should examine and state its findings regarding the proofs offered by the U.S. heirs that they too survived decedent. See Rule 1:7-4(a) (requiring a trial court to state its factual findings underpinning its legal conclusions); Curtis v. Finneran, 83 N.J. 563, 570 (1980).
The matter is remanded to the trial court for additional limited findings, which are to be completed within sixty days. We retain jurisdiction.