Division of Inherited Property

In accordance with paragraph 1 of Article 1076 of the Civil Code, any heir by law who has accepted the inheritance has the right to demand the division of the inheritance. The division of inheritance is carried out by agreement between the heirs in accordance with the shares due to them, and if no agreement is reached – through court proceedings.

When considering cases on the division of inherited property, courts should also apply the provisions of Article 218 of the Civil Code.

The Judicial Panel for Civil Cases of the Shymkent City Court amended the decision of the Interdistrict Civil Court of Shymkent dated April 4, 2024, in the case on the claim of H.F. and G.D. against H.D. and others concerning the division of inherited property through allocation of shares in kind.

By the court’s decision, the claim was partially satisfied. It was ruled to divide the inherited property that opened after the death of H.R., consisting of a residential house with a land plot, by paying the defendants monetary compensation instead of allocating their shares in kind, in the amount of 9,535,304 tenge to each.

The court of first instance, considering the defendants’ shares (1/8) insignificant, independently decided to recover from the plaintiffs monetary compensation corresponding to the value of the defendants’ shares.

However, the plaintiffs did not request the recovery of monetary compensation for the value of the shares in the real estate from them in favor of the defendants; thus, the court went beyond the scope of the claims presented.

In another case, Zh.E., acting in the interests of the legally incapacitated Zh.D., and Zh.A. filed a lawsuit against A. seeking the division of inherited property in the form of a residential house by paying each of them monetary compensation in the amount of 9,610,604 tenge.

By the decision of the Atyrau City Court dated February 26, 2024, the claim was satisfied.

By the ruling of the Judicial Panel for Civil Cases of the Atyrau Regional Court dated August 1, 2024, the decision of the court was amended.

A new decision was adopted to sell the residential house through a public auction with the subsequent distribution of the proceeds among the parties proportionally to their inheritance shares:50% – A.;25% – Zh.E., acting in the interests of the incapacitated Zh.D.;25% – Zh.A.

In this case, it was established that none of the parties expressed a desire to receive the real estate in kind with payment of compensation to another co-owner. None of the co-owners live in the disputed house, and each has their own housing. The defendant stated that it was impossible to pay compensation for the share due to the lack of financial means.

According to paragraph 6 of Article 218 of the Civil Code, if the division of jointly owned property or the allocation of a share from it is impossible under the rules set out in paragraphs 3 and 4 of this article, the court shall decide to sell the property through a public auction and distribute the proceeds among the participants of common ownership proportionally to their shares.

Therefore, the panel correctly concluded that the house and the land plot should be sold through a public auction, since the significant circumstances established in the case indicate that another method of resolving the dispute would be impractical.

General Provisions

In accordance with paragraph 1 of the Regulatory Resolution, when resolving inheritance disputes, courts must be guided by the legislation in force on the day the inheritance was opened.

A new law introducing changes or additions to the previous procedure for regulating inheritance relations applies to rights and obligations that arise after its entry into force.

In the previous review, it was clarified that from July 1, 1999, with the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part), the previously existing procedure for accepting inheritance changed.

According to Article 542 of the Civil Code of the Kazakh SSR, which was in force before July 1, 1999, in order to acquire an inheritance the heir had to accept it.

An heir was considered to have accepted the inheritance when he or she actually entered into possession or management of the inherited property, or when he or she submitted an application for acceptance of the inheritance to the state notary office at the place where the inheritance was opened.

These actions had to be performed within six months from the date the inheritance was opened.

With the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part) on July 1, 1999, the rules for accepting inheritance changed significantly, and the “presumption of acceptance of inheritance” began to apply.

This meant that an heir acquired the right to the inheritance due to him or her from the moment the inheritance was opened, unless the heir subsequently refused the inheritance, was deprived of the right to inherit, or lost the right to inherit due to the invalidation of the testamentary disposition appointing him or her as an heir.

From February 3, 2007, the previous procedure for accepting inheritance was reinstated (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, courts fail to take into account that the legislation in force at the time of opening the inheritance must be applied when considering a case.

By the decision of the Mughalzhar District Court of Aktobe Region dated May 16, 2024, the claim of G.V.V. against the State Institution “Office of the Akim of the City of Kandyagash, Mughalzhar District, Aktobe Region” on restoring the time limit for accepting the inheritance and recognizing him as having accepted the inheritance was satisfied. The case was not reviewed on appeal.

According to the circumstances of the case, the testator G.V.N. died on December 13, 2000, that is, during the period when the presumption of acceptance of inheritance was in effect. However, when the plaintiff applied to the notary of the Aktobe notarial district for a certificate of inheritance rights, she was refused due to missing the time limit for accepting the inheritance.

Such mistakes are systematic. The lack of knowledge of the law by certain notaries leads to unjustified appeals by citizens to the courts, which fail to stop the unlawful actions of notaries and thereby contribute to further violations of citizens’ rights.

Courts should also know that the circle of heirs is determined by the legislation in force at the time the inheritance was opened.

During the period of the Civil Code of the Kazakh SSR, there were only three lines of heirs. From July 1, 1999, the Civil Code of the Republic of Kazakhstan established six lines of heirs by law, and from February 3, 2007, the circle of heirs was changed again.

During the period from July 1, 1999 to February 3, 2007, the Civil Code did not contain the institution of hereditary transmission, and from February 3, 2007, the rules of inheritance by right of representation were changed.

Thus, due to the different legal regulation of the same issue in different periods, courts must apply the rules of law that were in force at the time the inheritance was opened.

Jurisdiction

According to the Civil Procedure Code, the following jurisdiction applies to civil cases arising from inheritance legal relations.

Part 3 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction for cases on:

• recognition of a person as an unworthy heir;

• recognition of inheritance as escheated property;

• restoration of the time limit for accepting inheritance;

• extension of the time limit for refusal of inheritance.

These cases are considered at the place where the inheritance was opened.

According to Article 1043 of the Civil Code, the place of opening of inheritance is the last place of residence of the testator, and if it is unknown – the location of the property or its main part.

By the ruling of the Aksu District Court of Zhetysu Region dated October 23, 2024, the claim of A.T. against O. and others to restore the time limit for accepting inheritance was unreasonably returned due to lack of jurisdiction.

By the ruling of the Judicial Panel for Civil Cases of the Zhetysu Regional Court dated December 10, 2024, the ruling of the court of first instance was canceled and the claim was sent to the same court.

According to the information system of law enforcement and special bodies, the deceased A.M. had been registered in the village of Zhansugurov of Aksu District during his lifetime. The same information regarding the last place of residence of the testator was provided by police authorities. In addition, a residential house was registered in A.M.’s ownership at the specified address.

Regulatory Legal Framework

The regulatory legal acts governing these legal relations and subject to application when considering cases of this category include:

• the Constitution of the Republic of Kazakhstan;

• the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (2002);

• the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (1993) and its Protocol of March 28, 1997;

• the Civil Code of the Kazakh SSR;

• the Civil Code of the Republic of Kazakhstan;

• the Civil Procedure Code of the Republic of Kazakhstan;

• the Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;

• the Law of the Republic of Kazakhstan “On Notaries”;

• the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 1999 No. 5 “On Certain Issues of Application by Courts of Legislation on Inheritance”;

• the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2022 No. 13 “On Judicial Practice in Cases on Establishing Facts Having Legal Significance”;

• the Rules for Performing Notarial Acts by Notaries, approved by Order of the Minister of Justice of the Republic of Kazakhstan No. 31 dated January 31, 2012.

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