Strange Apostille Case of the Day: In re Kamalnathan

The case of the day is In re Kamalnathan (Cal. App. 2022). The case was a divorce case. The wife argued that certain properties in India were community property, and she offered some deeds to support her claim. The husband argued that the deeds should be excluded because the wife had not shown they were authentic. The argument in the lower court was that the apostilles attached to the deeds were improper because the words “authenticity” and “authentic” in the apostilles were crossed out. Unfortunately the decision does not give the text of the deeds or the apostilles.

One point I always like to make when a an apostille comes up is that you have to remember what the apostille is for. From a general American law perspective, the point of the apostille is to make the document self-authenticating. But documents that are not self-authenticating can be authenticated in other ways. the opinion doesn’t get into it, but it may be that even the absence of an apostille would not be fatal to proof of the authenticity of the deed.

What about the apostilles in this case? It’s curious that the words “authentic” and “authenticity” in the apostilles were crossed out, because neither word appears in the model apostille, which under Article 4 of the Apostille Convention is mandatory. So it’s really unclear what the court is talking about.

Anyway, the lower court held, correctly I think, that the apostilles were acceptable:

Apostilles were not meant to authenticate the deeds, only to certify the authenticity of the signature, seal or position of the official (in this case the notary) who executed, issued or certified a copy of a public document (the deeds). An apostille of an authentication does not relate to the content of the underlying document. [¶] The deeds may be introduced into evidence provided they have a notary stamp certified with an apostille

But the lower court seems to have taken the view that a deed that did not have a notarial certificate an an apostille could not be admitted, and that’s the decision the wife challenged. But she does not seem to have offered evidence that would, if admitted, have authenticated the deeds, and so the court easily rejected her challenge.

In short, it is hard to know what to make of this case, except that like many cases, there may have been a tendency to treat the apostille somewhat mystically.

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