Acceptance of the inheritance and recognition as having accepted the inheritance
In accordance with Article 47 of the CPC, the plaintiff and the defendant are the parties to the civil procedure.
Plaintiffs are citizens and legal entities who have filed a claim in defense of their violated or disputed rights and freedoms, legitimate interests, or in whose defense a claim has been filed by other persons in accordance with the procedure provided for by this Code.
When considering cases related to inheritance, the courts must determine whether the plaintiff (applicant) is the heir or the heir of the queue for whom the court's decision will entail a consequence in the form of a vocation to inheritance.
The defendants are citizens and legal entities against whom the claim is filed.
In some cases, in cases of inheritance rights, plaintiffs involve notaries as defendants, and the courts consider such claims on their merits. Meanwhile, a notary is not a party to a disputed civil law relationship, he may be involved in the case as a third party who does not make independent claims on the subject of the dispute.
It is unjustified to consider the merits of claims filed against the State Institution "Akim's Office", which is an institution that ensures the activities of the local executive body (if established), akim and performs other functions provided for by the legislation of the Republic of Kazakhstan.
General provisions
In accordance with the requirements of paragraph 1 of the Regulatory Decree, when resolving disputes in inheritance cases, the courts must be guided by the legislation in force on the day of the opening of the inheritance.
The new law, which introduces any changes and additions to the previous procedure for regulating inheritance relations, applies to those rights and obligations that arise after its entry into force.
The previous summary explained that since July 1, 1999, that is, with the enactment of the Civil Code of the Republic of Kazakhstan (Special Part), the previously existing procedure for accepting inheritance has changed.
In accordance with Article 542 of the Civil Code of the Kazakh SSR, which was in force until July 1, 1999, in order to acquire an inheritance, the heir had to accept it.
It was recognized that the heir accepted the inheritance when he actually took possession or management of the inheritance property or when he submitted an application for acceptance of the inheritance to the state notary office at the place of opening the inheritance.
These actions must be performed within six months from the date of the opening of the inheritance.
With the entry into force on July 1, 1999 of the Civil Code of the Republic of Kazakhstan (Special Part), the rules for accepting inheritance changed significantly, the "presumption of acceptance of inheritance" began to operate, that is, the heir acquired the right to the inheritance due to him from the time of the opening of the inheritance, if he does not subsequently renounce the inheritance, will not be deprived of the right to inherit and will not lose the right to inherit as a result of the invalidation of the testamentary disposition on the appointment of his heir.
On February 3, 2007, the previous procedure for accepting inheritance became effective (the Law "On Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General and Special Parts)" dated January 12, 2007).
In some cases, the courts do not take into account that when considering a case, one should be guided by the legislation in force on the day of the opening of the inheritance.
By the decision of the Mugalzharsky district Court of the Aktobe region dated May 16, 2024, the claim of G.V.V. to the State Institution "Akim's Office of the city" was satisfied.
Kandyagash of Mugalzhar district of Aktobe region" on the restoration of the deadline for accepting the inheritance and recognizing it as having accepted the inheritance. The case was not considered on appeal.
According to the circumstances of the case, it follows that the testator G.V.N. died on December 13, 2000, that is, during the period when the presumption of acceptance of the inheritance was in effect, however, when the plaintiff applied to the notary of the Aktobe notary district K. to obtain a certificate of inheritance, she was refused for missing the deadline for acceptance of the inheritance.
Such mistakes are systematic, and individual notaries' ignorance of the law leads to unjustified appeals by citizens to the courts, which do not prevent illegal actions by notaries, thereby contributing to further violations of citizens' rights.
Courts should be aware that the circle of heirs is also determined by the legislation in force at the time of the opening of the inheritance. At the time of the action of the Civil Code of the Kazakh SSR, there were only three queues of heirs, from July 1, 1999, the Civil Code of the Republic of Kazakhstan determined six queues of heirs by law, from February 3, 2007, the circle of heirs was changed again.
In the period from July 1, 1999 to February 3, 2007, there was no institute of hereditary transmission in the Civil Code, and since February 3, 2007, the rules of inheritance by right of representation have changed.
Thus, due to the different legal regulation of the same issue in different periods, the courts must apply the rules of law at the time of the opening of the inheritance.
Jurisdiction
In accordance with the CPC, there is the following jurisdiction for civil cases arising from hereditary legal relations.
Part 3 of Article 31 of the CPC defines the exclusive jurisdiction of cases on claims for recognition as an unworthy heir, recognition of inheritance as extortionate, restoration of the deadline for accepting inheritance, extension of the deadline for renouncing inheritance.
Cases on the above-mentioned claims are considered at the place of inheritance opening.
Earlier, the summary clarified the issues of the jurisdiction of cases on claims for the restoration of the deadline for accepting inheritance due to the contradiction of the paragraph
12 of the Normative Resolution of part 3 of Article 31 of the CPC. Before making appropriate changes to the Regulatory Resolution, the courts are recommended to be guided by the norms of the CPC, that is, claims for restoring the deadline for accepting inheritance or extending the deadline for rejecting inheritance must be submitted to the court at the place of opening the inheritance.
According to Article 1043 of the Civil Code, the place of inheritance opening is the testator's last place of residence, and if it is unknown, the location of the property or its main part.
By the ruling of the Aksu District Court of the Zhetisu region dated October 23, 2024, the claim of A.T. to O. and others for the restoration of the deadline for accepting the inheritance was unreasonably returned due to the jurisdiction of the case to this court. As the basis for the return, the court indicated that the deceased A.M. was registered in the city of Taldykorgan.
By the ruling of the judicial board for civil cases of the Zhetisu Regional Court dated December 10, 2024, the ruling of the court of first instance was canceled, the claim was sent to the same court.
According to the information exchange system of law enforcement and special agencies (SIO PSO), the deceased A.M. was registered during his lifetime in the village of Zhansugurov, Aksu district. Similar information regarding the testator's last place of residence has been provided by the police. In addition, A.M. has a registered house building at the above address.
Part 2 of Article 31 of the CPC establishes the exclusive jurisdiction of claims by creditors of the testator brought against the heirs, the executor of the will (the trustee of the inheritance) - at the location of the inherited property in accordance with the rules established by part one of this article, that is, in accordance with the rules established for immovable property.
If the inherited property includes movable property (deposits in banks, a share in the authorized capital of a business partnership, shares in cooperatives, etc.), then the general rule of jurisdiction applies to creditors' claims – at the location of the defendant.
Disputes on the protection of the inheritance rights of minor children in accordance with part 3 of Article 27 of the CPC are considered by specialized inter-district juvenile courts.
In some cases, courts unreasonably refer cases of jurisdiction to specialized juvenile courts.
By a ruling of the Kyzylorda City Court dated October 2, 2024, I.'s claim against A. for declaring illegal an application for renunciation of inheritance and invalidating a certificate of inheritance rights was sent under the jurisdiction of the specialized interdistrict juvenile court of the Kyzylorda region on the grounds that the defendant owes the plaintiff alimony for the maintenance of minor children.
The appeals board disagreed with the conclusion of the court of first instance and overturned the ruling, sending it to the same court for consideration on the merits, pointing out that this claim was not filed in the interests of minors who are not heirs of the testator.
The rule of general jurisdiction (at the location of the defendant) applies to all other cases arising from inheritance rights (on invalidation of wills, certificates of inheritance, with the exception of certificates of rights to immovable property, etc.).
By the ruling of the judicial Board for Civil Cases of the North Kazakhstan Regional Court dated February 13, 2025, the ruling of the Gabit Musrepov district Court dated January 16, 2025 was canceled, which returned the claim of LLP to S., F. on invalidation of the certificate of inheritance right under the law.
Returning the claim, the court of first instance proceeded from the fact that the plaintiff is a legal entity, the defendant S. is registered as an individual entrepreneur (hereinafter referred to as IP), the dispute arose in relation to the share of participants in common shared ownership in the farm (hereinafter referred to as FH), which indicates the existence of a corporate dispute, which is under the jurisdiction of a specialized interdistrict economic court (hereinafter referred to as the ICES).
The board found these conclusions to be unfounded, pointing out that defendant S. is not a participant in LLP or FH, as well as the head or former head of these organizations, respectively, the court's conclusion that the dispute is a corporate one contradicts the content of Article 27 of the CPC. The status of S. as an individual entrepreneur does not matter for attributing the case to the jurisdiction of the SME, the LLP's appeal is related to challenging the title document of the defendant, an individual.
According to Article 307 of the CPC, an application for establishing a fact of legal significance is filed with the court at the applicant's place of residence, with the exception of the fact that there are documents confirming the possession, use and (or) disposal of immovable property, which is filed with the court at the location of the immovable property.
By the decision of the Taraz City Court of the Zhambyl region dated December 6, 2024, L.T.'s application for establishing the legal fact of the place of opening of the inheritance was satisfied. The place of discovery of the inheritance after the death of L.S., who died on October 24, 1999, is the city of Taraz.
The basis for applying to the court was the decree of notary S. dated October 11, 2024, which denied the applicant a certificate of inheritance after the death of his spouse and recommended that he apply to the court to determine the location of the inheritance, since the spouse was not registered at the location of the inheritance property (apartment in the city of Taraz), the place of registration was discharged.
In this case, the notary unreasonably refused to issue a certificate of inheritance, since, in accordance with Article 1043 of the Civil Code, the place of opening the inheritance is the testator's last place of residence, and if it is unknown, the location of the property or its main part, respectively, the court had no legal grounds for satisfying the application.
A., who lives in Almaty, applied to the court to establish two facts: a family relationship with her grandmother U. and acceptance of the inheritance that opened after U.'s death. on the territory of the city of Khromtau, Aktobe region.
By a ruling of the Khromtau District Court dated August 2, 2024, A.'s application was returned due to lack of jurisdiction with reference to Article 307 of the CPC.
The court of appeal, referring to the provisions of Article 31 of the CPC, overturned the ruling of the court of first instance, pointing out the existence of immovable property in the testator.
Subsequently, by the ruling of the Khromtau District Court of October 23, 2024, the proceedings in the case regarding the requirement to establish the fact of acceptance of the inheritance were left without consideration due to the withdrawal of the application based on subparagraph 8) of Article 279 of the CPC.
By a court decision dated October 28, 2024, A.'s application for establishing the fact of family relations was satisfied.
In the analysis of the Aktobe Regional Court, the question was raised about the legality of considering the said case on territoriality in the Aktobe region, since, in accordance with Article 307 of the CPC, an application for establishing a fact of legal significance is filed with the court at the applicant's place of residence, with the exception of applications for establishing the existence of documents confirming ownership, use and (or) disposal of immovable property, which is filed with the court at the location of the immovable property.
In this case, the position of the court of appeal seems to be correct, since in the initial application it was necessary to take into account the rule on exclusive jurisdiction established by Article 31 of the CPC (establishing the acceptance of inheritance in the form of immovable property).
Regulatory framework
The normative legal acts regulating these legal relations and subject to application in the consideration of cases of the analyzed category are:
-The Constitution of the Republic of Kazakhstan;
-Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002;
-The Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 and its Protocol of March 28, 1997;
- The Civil Code of the Kazakh SSR (hereinafter referred to as the Civil Code of the Kazakh SSR);
- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan);
- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC);
-The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family";
-The Law of the Republic of Kazakhstan "On Notaries";
-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the Supreme Court of the Republic of Kazakhstan) dated June 29, 1999 No. 5 "On certain issues of the application of Inheritance Legislation by Courts" (hereinafter referred to as the Regulatory Resolution);
-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2022 No. 13 "On Judicial practice in cases of establishing facts of legal significance";
-Rules for performing notarial acts by notaries, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated January 31, 2012 No. 31.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
