Forensic Genealogy Services to Prove Heirship
Certified legal document translation services combined with the expert witness services of forensic genealogists, also known as probate genealogists, or probate researchers, are often used to identify potential heirs at law and to prove heirship in international probate litigation.
In re Estate of Carmel Bennoon, 2014 IL App (1st) 122224, 13 N.E.3d 236 (2014), involves a decedent that passed away in 2007 without any known heirs. Initially, the order of heirship was amended to include maternal heirs, however, at that time, paternal relatives were still unknown. In 2011, the petitioner Tatyana Tovstorog sought to amend the order, asserting herself as the great-niece. Supporting her claim, her attorney provided an affidavit citing a genealogical search conducted in Belarus. Documents from this search revealed a familial connection through a common paternal ancestor, including marriage registrations and birth certificates. These foreign language documents were authenticated with apostilles. Additionally, a Ukrainian court issued an order in 2011 confirming Tovstorog’s lineage as legally valid.
During a 2012 hearing, the respondent Public Administrator of Cook County, opposed the admission of Tovstorog’s documentation. The lower court allowed their use while preserving the objection to their authenticity. Julia Semenova, a genealogist and attorney based in Kiev, testified for the County. She worked for the Ukrainian Bar Association, specializing in genealogical research for over four years and was the head of the genealogical research and international probate process section. Her role involved examining various vital records and preparing reports to establish family history in estate cases. While she lacked formal genealogy education or licensing in Ukraine, she attended seminars and yearly conferences on genealogical research for a decade, receiving certificates outlining her skills.
The lower court accepted Semenova as an expert in genealogy. At the County’s request, Semenova reviewed certain documents and found potential falsifications, prompting her to seek validation from the National Archives of Ukraine. The Archives confirmed the documents as falsified and pledged to provide certificates supporting this finding. Semenova obtained an apostille for the Russian and Ukrainian documents and returned them to the County for further review.
In 2011, Ms. Semenova had conducted an investigation in Orkut City, Transcarpathia, focusing on records dating from 1895 to 1935. Ukrainian recordkeeping involved two sets of records: one detailed and another with just names and years. Each book was officially printed, numbered, and marked with a state symbol. During her investigation, Semenova discovered irregularities. For example, the page in the registry seemed tampered with, glued in, and different in ink color and signature style. Similar discrepancies arose with a birth certificate. Additionally, source codes did not correspond to the expected records and instead led to different registry books. Based on the inconsistencies, Semenova concluded that the marriage and birth certificates presented by Tovstorog were likely falsified.
Olga Schwitz, testifying in Russian through an interpreter, worked as a lawyer at the National Archives Service in Ukraine. Schwitz was part of a committee appointed by the National Archives Service to investigate the estate’s heirship claims. The committee reviewed the specific records presented by Tovstorog in the US case.
The discrepancies the committee found also included different handwriting and ink, gluing rather than binding, inconsistent page numbering and non-chronological order. An investigative committee concluded that these records were falsified and sent their findings to the authorities for further investigation. The State Archives of the Transcarpathia region’s expert committee also confirmed falsification and directed the removal of these records from the archives. Tovstorog did not cross-examine Schwitz and relied solely on her own documents from Ukraine, which the lower court later deemed unreliable. The lower court rejected Tovstorog’s motion to reopen proofs and subsequently denied the motion to amend heirship, emphasizing that the documents provided were found to be false and without legal significance by both the State Archives and expert testimonies. Despite subsequent motions for rehearing based on purported new evidence, the lower court upheld its decision.
On appeal, Tovstorog argued several points. First, she argued that the court made an error in finding Julia Semenova to be an expert witness qualified to testify on the matter of genealogy. Second, Tovstorog argued that the lower court failed to recognize the Ukrainian court order. Third, she believed that the lower court should have allowed her to present new evidence. Fourth, Tovstorog argued that the decision to deny the motion was not supported by the evidence. Finally, she stated that the lower court was mistaken in rejecting her motion for rehearing or reconsideration of the original decision.
The Appellate Court of Illinois affirmed the lower court’s decision in all respects.
Acceptance of Semenova as Expert Witness in Genealogy
First, Tovstorog contested the lower court’s decision to qualify Semenova as a genealogy expert. Admitting expert testimony is within the court’s discretion. There would be an abuse of discretion only if the court disregarded recognized legal principles or acted unreasonably. Tovstorog argued that Semenova lacked adequate education, formal training, or specific credentials in genealogy. However, the lower court found Semenova sufficiently qualified as she had practical experience and extensive involvement in genealogical research over ten years, including testifying as an expert in multiple US courts. Semenova’s unfamiliarity with certain historical recordkeeping practices and ink properties did not disqualify her as an expert. The lower court concluded that Semenova’s practical expertise and testimony validated her as an expert in genealogy. Thus, the appeals court found that the lower court did not abuse its discretion in admitting her testimony.
Refusal to Grant Comity to Ukrainian Court Order
Tovstorog also challenged the lower court’s refusal to grant comity to a Ukrainian court order affirming her status as relative of the decedent. Tovstorog argued that the lower court should have honored the Ukrainian order as long as the Ukrainian court had competent jurisdiction and had not violated Illinois laws or public policy. A court will grant comity to a foreign court’s decision if there was a fair trial, jurisdiction, regular proceedings, and no evidence of fraud or prejudice in the foreign court. The reasoning behind this is that once parties have had a fair trial in a competent court, the judgment should be final. However, it is essential that notice, an opportunity to be heard, and a chance to defend oneself in a proper proceeding are upheld, ensuring due process.
The County argued that the Ukrainian court’s proceeding was conducted ex parte, lacking notice to the County was not adversarial in nature. The appeals court held that the denial of comity to the Ukrainian court’s order was acceptable since Tovstorog could not demonstrate that the Ukrainian court had an adversarial process or that the respondent had an opportunity to participate in the proceedings.
Denial of Motion to Reopen Proofs
Tovstorog also contested the lower court’s rejection of her motion to reopen the proofs. The decision to reopen depends on whether there were valid reasons for not presenting evidence during the trial, avoiding unfair prejudice, and the significance of the new evidence to the case, especially in non-jury trials where greater flexibility is allowed.
Tovstorog argued that the County’s failure to respond to her petition, its failure to disclose witnesses, and Tovstorog’s unfamiliarity with the contested nature of her documents led to her unpreparedness during the hearing. While the Tovstorog claimed surprise due to the County’s witnesses and evidence, the record showed that she was aware of the contested nature of her documents. The appeals court found that this was not a situation where new evidence truly surfaced after trial, but it was one where the evidence existed beforehand and could have been obtained earlier.
Additionally, the new evidence primarily aimed at discrediting the credibility of the County’s witnesses rather than offering contradictory facts, resembling impeachment more than presenting substantially different factual information. Additionally, the delay caused by reopening proofs in an estate that had been open since 2008 weighed against allowing the reopening.
As a result, the lower court’s denial of Tovstorog’s motion to reopen proofs was deemed not an abuse of discretion, as the new evidence was seen as more about impeaching witness credibility than altering the factual basis of their testimony.
Denial of Motion to Amend Went Against the Weight of the Evidence
Tovstorog also argued that the denial of her motion to amend heirship was against the manifest weight of evidence. However, the court explained that in reviewing a judgment following a bench trial, it only overturns it if the conclusion is clearly unreasonable, arbitrary, or lacks basis in the evidence presented.
The appeals court emphasized the lower court’s role as the primary evaluator of witness credibility and the weight of the evidence.
Tovstorog emphasized the significance of the apostilled Ukrainian public records that she presented, asserting they should hold more weight than Semenova’s testimony, who lacked genealogical expertise. The appeals court, however, validated Semenova’s qualification as an expert witness in genealogy based on her practical experience, investigations, and testimony consistency.
Tovstorog also contended that the Ukrainian court order established her paternal relationship to the decedent and argued that her post-hearing documents confirmed that challenging archival records required a court proceeding. Yet, the appeals court had ruled against granting comity to the Ukrainian court order and denied the motion to reopen proofs for presenting new documents.
Regarding Semenova’s and Schwitz’s credibility, Tovstorog highlighted inconsistencies in their testimonies, specifically focusing on discrepancies in records and ink types used. However, the appeals court found no substantial contradictions and emphasized that discrepancies and biases affect testimony weight, which is evaluated by the trier of fact.
Ultimately, the appeals court concluded that the denial of the motion to amend heirship was not against the manifest weight of the evidence since the evidence presented and the witness testimony supported the lower court’s determination that the petitioner failed to prove heirship.
Denial of Rehearing/ Reconsideration
Finally, Tovstorog requested rehearing or reconsideration by the lower court and was denied. When reviewing such denials, the appeals court examines whether or not new matters, like additional facts or fresh legal arguments, were presented, resulting in an abuse of discretion.
The appeals court explained that parties are expected to provide a reasonable explanation for the unavailability of evidence during the original hearing when seeking reconsideration. It emphasized that courts should not allow litigants to gather evidence after losing a motion, causing unnecessary delays in proceedings.
The appeals court held that Tovstorog was aware of challenges to the Russian and Ukrainian documents supporting her heirship claim before the hearing but did not pursue discovery to understand the County’s position. Despite prior indications that the hearing might be contested, Tovstorog waited until her motion was denied to present the newly discovered evidence.
The lower court’s denial of Tovstorog’s motion for rehearing or reconsideration was upheld.
Get in touch with the forensic genealogy and certified translation experts at All Language Alliance, Inc. to retain certified genealogists and legal genealogy researchers as expert witnesses to locate Polish, Lithuanian, Czech, German, Russian, Italian, Greek, Hebrew, Portuguese, Ukrainian, Latvian, Low German Mennonite, Danish, Swedish, French, Croatian heirs at law; to obtain certified Apostille legal document translation services; and to hire certified court interpreters to interpret testimony of non-English-speaking witnesses in contested international probate cases.
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