Estate v. Herzog

Decision Date29 March 2019
Docket NumberE068698
CourtCalifornia Court of Appeals Court of Appeals
Parties ESTATE OF Lieselotte A. HERZOG, Deceased. Kemp & Associates, Petitioner and Appellant, v. Winnfred Herzog, Objector and Respondent.

Seiler Epstein Ziegler & Applegate, San Francisco, and Douglas A. Applegate, Irvine, for Petitioner and Appellant.

Diana J. Carloni, Victorville, for Objector and Respondent.

OPINION

MILLER Acting P.J.Lieselotte Herzog (the Decedent) died intestate on October 17, 2013. In April 2014, the probate court issued letters of administration appointing Winnfred Herzog (Nephew) as the administrator of the Decedent's estate. Kemp & Associates, Inc. (Kemp), a firm specializing in locating heirs, held a power of attorney for Maurene Schraff Nadj (Half Sister). In July 2016, Kemp petitioned the probate court for a determination that Half Sister was the Decedent's sole heir. ( Prob. Code, § 11700.) The probate court denied Kemp's petition with prejudice due to Kemp presenting insufficient evidence.

Kemp raises four issues on appeal. First, Kemp asserts the probate court erred by bifurcating the issue of whether Half Sister is the Decedent's heir. Second, Kemp contends the probate court erred by concluding Kemp did not meet its burden of proof. Third, Kemp contends the probate court erred by ruling Kemp's evidence was inadmissible. Fourth, Kemp contends Nephew lacked standing to oppose Kemp's petition. We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

A. FINAL ACCOUNTING

Nephew was the Decedent's late husband's nephew. In May 2016, Nephew filed an amended first and final accounting for settlement of the account and distribution of the Decedent's estate (Amended Accounting). In the Amended accounting, Nephew wrote, "Decedent is not survived by a spouse, never had children and is believed to be an only child. Her only heirs appear to be nieces and nephews by law, of her late husband."

Nephew calculated the balance of the estate, after payment of expenses and fees, as amounting to $ 205,219.89 in cash. Nephew identified the heirs as (1) Nephew, who resided in New York; (2) Ruth Anni Sigel, who resided in Germany; (3) Gisele Gubele, who resided in Germany; and (4) Elise Owczarek, who resided in Germany. Nephew contended that each heir should receive 25 percent of the estate, which would amount to each heir receiving a payment of $ 51,304.97.

Nephew wrote, "[A]n heir finding service ... has alleged a ‘half-sister of the decedent [exists], which if proven, would constitute an heir at law entitled to some or all of the estate. This individual has monitored the proceedings and requested and received special notice, including a copy of this petition. The estate has requested a birth certificate from the alleged heir, but none has been received to date. [¶] As such, [Nephew] currently requests distribution to the nieces and nephews of the decedent in equal shares .... [¶] ... [¶] [Nephew] expects objections to the distribution proposed in herein [sic ], and invites the alleged heir to dialogue immediately, such that at the time of the supplement, and prior to the date set, this issue might be addressed. [Nephew] has been authorized to offer the alleged and challenged heir at law a 20% interest in the estate, such that all five individuals would be receiving one-fifth equal share in the estate."

B. PETITION

In July 2016, Kemp filed a petition requesting that Half Sister be found to be the sole heir of the Decedent's estate. Kemp asserted that because the Decedent's husband (Spouse) died in 1995, which was more than 15 years prior to the Decedent's death, Spouse's family had no claim to the Decedent's estate. Kemp argued that Half Sister was the Decedent's sole heir, in that the Decedent and Half Sister shared a father.

In support of Kemp's petition, it provided the declaration of Kemp's attorney, Laura Woodward. The declaration provided, in part, "The documents, including English translations, demonstrating [Half Sister's] entitlement to this Estate and attached hereto as Exhibit 1 were provided to [Nephew's attorney] on September 16, 2014."

Exhibit 1 to the declaration includes a "Translation of a German Document," translated from German to English by Hoerner Bank. The document reflects Franz Schraff (Father) married Wilhelmina Keßler in February 1928, and they divorced in June 1937. They shared one child, the Decedent, who was born in September 1928. The document further reflected that Father married Lina Beck in December 1944. A document handwritten in German follows the translated document. The handwritten document bears a stamp from the Creglingen City Archive, reflecting it is a "Family register held by [the] registry office."

Exhibit 1 includes a second "Translation of a German Document" (second translation), translated from German to English by Hoerner Bank. The second translation reflects Father married Lina Beck in 1944, and they had one child, Half Sister, in May 1950. The bottom of the second translation reads, "The certified copy reflects in the entries under Nos. 4, 5, 7, and 9 the status of December 31, 2008. This official certificate is not a vital statistics certificate as provided for the in the German Civil Status Act [PStG]. [¶] 97993 Creglingen, dated: January 24, 2014 [¶] Registrar's seal and signature by proxy [s] Naser." A document in German follows the second translation. There is a signature and a stamp on the German document.

There are more forms included in Exhibit 1, and each form bears three languages: German, French, and English. The first form appears to be a death certificate for the Decedent's mother. The second form appears to be the Decedent's marriage certificate.

Exhibit 2 also includes forms in three languages: (A) a birth certificate for Half Sister, signed by "Pisch," and bearing a stamp from Stadt Bad Mergentheim; and (B) a birth certificate for the Decedent, signed by "Beer," and bearing a stamp from Bad Friedrichshall.

On February 24, 2017, Woodward filed a verification for Kemp's July 2016 petition. Woodward wrote, "I have read the petition ..., and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe them to be true." Woodward explained that Kemp was not in San Bernardino County, which is why Woodward verified the petition.

C. NEPHEW’S TRIAL BRIEF

Nephew filed a trial brief. Nephew wrote, "[Half Sister] is a resident of Germany.

Unverified and uncertified documents have been submitted suggesting that she is a one-half sister of the decedent. However the documents are not official records of the Republic of Germany and carry no consular authentication or certification nor official translation. The estate cannot recognize her documents absent compliance with the law." Nephew argued that Kemp had to comply with Evidence Code section 1400, concerning the authentication of written documents.

D. KEMP'S TRIAL BRIEF

Kemp also filed a trial brief. Kemp asserted, "Administrator [Nephew] is not impartial and may not, as Administrator, object to the Petition of [Kemp] to determine that [Half Sister] is Decedent's sole heir." Kemp asserted Nephew "violate[d] the requirement of impartiality ... by filing objections [and] he also failed to obtain the mandatory court permission prior to filing his papers." Kemp also faulted Nephew for failing to provide evidence of the four heirs' status as the Decedent's heirs. Kemp argued that the four heirs are not the Decedent's heirs because they are related to Spouse, who predeceased the Decedent by more than 15 years. Further, Kemp argued, "The birth certificates of [Half Sister] and [the Decedent] are German documents which bear the appropriate German governmental seal. As such, the documents are self-authenticating."

E. HEARING

The probate court held a hearing in the case. At the beginning of the hearing, the court said, "Well, it looks to me like the first question the Court needs to resolve is having to do with, really, the submission of documents and whether the Court will accept them as authentic or not."

The probate court described Kemp's hearing exhibits: "Marked as Exhibit 1 is a document, single page, Bundesrepublik Deutschland. It's all in German. And at the very top right had corner it says, I believe, Formule ... A.... [¶] Exhibit 2 is a three-page document Hoerner ... Bank. Translation of a German Document. It says Family Book on it. [¶] Exhibit 3 is another document, single page, all in German. This also has at the upper right hand corner Formule A. The difference between this one—the difference between Exhibit 1 and Exhibit 3 is that Exhibit 1 in the upper right it has the words Bad Mergentheim .... And on Exhibit 3 it says Bad Friedrichshall .... As I mentioned, it's all in German.

"And then Exhibit 4 is another document. This document is four pages. Hoerner Bank again. Implicated Translation of a German Document. Attached to it are some pages in German script. Some of which is printed and some of which is handwritten. And on the translation document it says—it's a chart. On the top of one side of the chart says Father of the Family, and on the other side of the chart it says Mother of the Family."

Kemp argued that Exhibit 1 is a birth certificate for Half Sister. Kemp contended, "The third page of the document has the official stamp on the back of that page." Kemp asserted that Exhibit 3 is a birth certificate for the Decedent, and Exhibit 4 is a translation of Exhibit 3. Kemp contended that Exhibit 3 "has the German seal on it on the back." The probate court responded, "It has a stamp." Kemp said, "And so the authenticating of that document under Evidence Code section 1452 is sealed, presumed to be genuine, and used to authorize and purports to be the seal of a nation recognized by the executive power of the United States. Which Germany certainly would be."

The following exchange occurred:

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