Alleged Lithuanian Heirs Fall Short in Pennsylvania Estate Case Due to Excluded Genealogical Testimony
Genealogical research services, testimony of genealogy expert witness and certified translations of foreign Apostilled records are often required in estate litigation. In Estate of Mikeska, 217 A.3d 329 (Pa. Super. Ct. 2019) Albert Mikeska died without a will in 2015. Mikeska’s two first cousins claimed to be the only persons entitled to share in the distribution of his estate. The cousins filed a certification to that effect and the Allegheny County Register of Wills designated the cousins as co-administrators of the Mikeska estate.
News about the Mikeska Estate Reaches Lithuania
Soon after, the Utah firm Kemp & Associates learned about the Mikeska estate and contacted Hoerner Bank in Germany to assist with locating missing heirs internationally. Hoerner Bank then hired Rolandas Brazauskas, a Lithuanian attorney and genealogist. Brazauskas had experience in such heirship cases having testified as a genealogy expert in four US court cases. Brazauskas did his research and sent it to Hoerner Bank which sent it on to Kemp. Kemp hired an attorney licensed in Pennsylvania to represent the twenty-two alleged heirs residing in Lithuania.
The Lithuanian heirs retained Brazauskas’s partner to represent them in documenting and proving their relationship to Mikeska. The Pennsylvania attorney hired by Kemp did not sign any agreement directly with Brazauskas. Kemp hired Hoerner Bank which hired Brazauskas. The Pennsylvania attorney also did not sign any agreement directly with the Lithuanian heirs. In his entry of appearance in Pennsylvania, the attorney listed each heir “c/o” the Kemp firm.
Lithuanian Heirs Claim Interest Before the Orphans’ Court, Allegheny County
The co-administrator cousins filed a motion for distribution in the lower court to which the Lithuanian heirs objected and later filed a petition to acknowledge themselves as heirs. Thereafter, the estate filed a first and final account. The Lithuanian heirs then withdrew their objection to the motion for distribution and filed an objection to the first and final account.
A hearing was held in the Orphans’ Court, Allegheny County. While the court did not recognize Brasauskas as an expert, the court permitted him to testify about how he obtained the Lithuanian documents that were submitted as exhibits. Brazauskas testified that he obtained the genealogical documents from Lithuania’s Central Historical Archives, most of which were certified copies bearing apostilles.
When Brazauskas was cross-examined by the estate, he testified that he would be paid on a contingent fee basis. At that point, the estate moved to strike Brazauskas’s testimony because he would be paid for his testimony on a contingent fee basis, which the estate argued violated Rule 3.4 of the Pennsylvania Rules of Professional Conduct. The court held the motion under advisement.
Later the Lithuanian heirs testified as to their family history, their relationship with Mikeska, and their correspondence with Mikeska’s mother. A Kemp employee also testified about the nature of Kemp’s business, its relationship with Hoerner Bank and the retention of the Pennsylvania attorney.
After the close of evidence, the court granted the estate’s motion striking all of Brazauskas’s testimony and dismissed the heirs’ objection to the first and final account. The heirs then appealed.
Appeal Proceedings Before the Pennsylvania Superior Court
The Lithuanian heirs raised numerous issues on appeal including whether or not the lower court erred when: (1) it struck all of Brazauskas’s testimony; (2) when it failed to recognize the Lithuanian documentary evidence the heirs presented in support of their claim; and (3) when it failed to recognize the testimony of the Lithuanian heirs.
The appeals court agreed that the documentary evidence should have been admitted because it was self-authenticating. However, the appeals court affirmed the lower court’s decision. It did so because Brazauskas had agreed to testify on a contingent fee basis which was a violation of Pennsylvania common law (not of the Rules of Professional Conduct) and the lower court sitting as fact-finder had the discretion to give the heirs’ testimony little or no probative value.
Thus, the exclusion of Brazauskas’s testimony and the decision to give little weight to the Lithuanian heirs’ testimony meant that the Lithuanian heirs did not have enough evidence to show they had an interest in the Mikeska estate.
The Lithuanian Documentary Evidence Was Self-Authenticating
The Lithuanian documentary evidence consisted of Certificates of Archives showing the location and date of each heir’s birth. These certificates were signed and sealed by the Lithuanian State Historical Archives. The Lithuanian certificates were translated into English.
The appeals court ruled the certificates were self-authenticating satisfying Pa.R.E. 902(3). It was an error not to admit the Lithuanian certificates into evidence. The appeals court also noted that the documents satisfied 42 Pa.C.S.A. Section 5328 covering “Proof of Official Records.”
Testimony by Lithuanian Genealogy Expert Witness
The appeals court agreed that it was correct to strike all of Brazauskas’s testimony, but not because there was a violation of the Rules of Professional Conduct rather it was a violation of Pennsylvania common law.
According to the appeals court, it was not clear that the Pennsylvania attorney violated the ethics rules. First, there was no evidence of a contingent fee agreement between Brazauskas and the Pennsylvania attorney. Second, there was no evidence that the Pennsylvania attorney was aware of the contingent fee agreement between Brazauskas’s firm and the Lithuanian heirs.
The appeals court, however, noted that Pennsylvania common law provided the basis for excluding Brazauskas’s testimony. The appeals court noted the case of Belfonte v. Miller (212 Pa.Super. 508 (1968)), which invalidated a contingent fee agreement with an expert witness. It held that Belfonte’s reasoning extended to the Mikeska case, which involved a fact witness. The appeals court further held that when a contingent fee arrangement with a fact witness is discovered, the lower court has “the authority to preclude the witness’s testimony to safeguard the judicial process.”
Additionally, the appeals court agreed that the lower court properly exercised its discretion when it gave the Lithuanian heirs’ testimony minimal weight. The lower court acted as the factfinder and in that role it was free to give whatever weight to the heirs’ testimony that it deemed fit. The appeals court also noted that none of the heirs had testified that they had any firsthand knowledge of or had ever met Mikeska and, instead, testified, that they only became aware of his death through Brazauskas.
In the end, the heirs had not provided enough evidence to the lower court to link them to Mikeska. The appeals court did not address other arguments raised by the Lithuanian heirs on appeal. Without Brazauskas’s testimony, the heirs could only prove through the Lithuanian documents where and when they were born. The heirs’ own testimony also did not help make up for the excluded genealogical testimony.
Get in touch with All Language Alliance, Inc. to obtain certified translation of Apostille foreign language documents written in Lithuanian, Greek, Thai, Polish, German, Portuguese, Spanish, French, Romanian, Italian, Czech, Hungarian, Slovak, Hebrew, Croatian, Hawaiian, Danish, other languages; and to retain genealogy researchers, certified genealogists and qualified expert witnesses in estate and kinship matters.
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