Establishment of the Fact of Kinship Through Court Proceedings

There are cases where courts grant applications for the establishment of the fact of kinship due to inaccuracies in civil status records.

B. applied to the court with a petition to establish the fact of kinship, stating that she could not obtain a certificate of inheritance rights without establishing the kinship relationship, since there were discrepancies in the spelling of the name.

By the decision of the Esil District Court of the North Kazakhstan Region dated May 29, 2025, the application was granted.

The court established that the applicant had been denied the issuance of a certificate of inheritance rights due to the inability to establish a kinship relationship with the deceased. The applicant was also denied correction of the civil status record.

In the death certificate, the deceased’s name was indicated as “R.”, while in the birth certificate it was indicated as “R.”. In addition, the father’s surname in the death certificate was recorded as “B.”, whereas in the birth record it was listed as “B.”.

In this case, the court unjustifiably granted the application to establish the fact of kinship. Instead, the applicants should have been informed of their right to apply to the court under Chapter 44 of the Civil Procedure Code with a request to establish the inaccuracy of civil status records.

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 date the inheritance was opened.

Any new law introducing amendments or additions to the previous procedure for regulating inheritance relations applies to rights and obligations arising after its entry into force.

As explained in the previous review, 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 an inheritance changed.

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

An heir was deemed to have accepted the inheritance if he or she had actually taken possession of or managed the inherited property, or had 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 governing acceptance of inheritance changed significantly. The “presumption of acceptance of inheritance” was introduced, meaning that an heir acquired the right to the inheritance due to him or her from the moment the inheritance was opened, provided that the heir did not subsequently renounce the inheritance, was not deprived of the right to inherit, and did not lose the right to inherit due to the invalidation of a testamentary appointment.

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 inheritance disputes must be resolved under the legislation in force on the date the inheritance was opened.

By the decision of the Mugalzhar District Court of the Aktobe Region dated May 16, 2024, the claim of G.V.V. against the State Institution “Office of the Akim of Kandyagash City, Mugalzhar District, Aktobe Region” for restoration of the term for acceptance of inheritance and recognition as having accepted the inheritance was granted. The case was not reviewed on appeal.

According to the case materials, the deceased G.V.N. died on December 13, 2000, during the period when the presumption of acceptance of inheritance was in effect. However, when the claimant applied to notary K. of the Aktobe Notarial District for a certificate of inheritance rights, she was refused on the grounds that the statutory period for accepting the inheritance had expired.

Such errors are systemic. The lack of knowledge of the law by certain notaries results in citizens being forced to apply to courts without justification, while courts fail to stop unlawful actions by notaries, thereby contributing to further violations of citizens’ rights.

Courts should be aware that the circle of heirs is also determined according to the legislation in force at the time the inheritance was opened. Under the Civil Code of the Kazakh SSR, there were only three classes of heirs. From July 1, 1999, the Civil Code of the Republic of Kazakhstan established six classes of heirs by law, and from February 3, 2007, the circle of heirs was amended again.

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

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

Jurisdiction

In accordance with the Civil Procedure Code (CPC) of the Republic of Kazakhstan, the following rules of jurisdiction apply to civil cases arising from inheritance legal relations.

Part 3 of Article 31 of the CPC establishes exclusive jurisdiction for claims concerning the recognition of a person as an unworthy heir, recognition of an estate as escheated property, restoration of the time limit for accepting an inheritance, and extension of the time limit for renouncing an inheritance.

Cases involving the above claims are considered at the place where the inheritance was opened.

Previous reviews explained issues of jurisdiction in cases involving restoration of the time limit for accepting an inheritance due to a contradiction between paragraph 12 of the Regulatory Resolution and Part 3 of Article 31 of the CPC. Until the relevant amendments are made to the Regulatory Resolution, courts are recommended to follow the provisions of the CPC. Therefore, claims for restoration of the time limit for accepting an inheritance or extension of the time limit for renouncing an inheritance must be filed with the court at the place where the inheritance was opened.

According to Article 1043 of the Civil Code (CC), the place where the inheritance is opened is the last place of residence of the deceased, and if it is unknown, the location of the property or its principal part.

By the ruling of the Aksu District Court of the Zhetysu Region dated October 23, 2024, the claim of A.T. against O. and others for restoration of the time limit for accepting an inheritance was unjustifiably returned on the grounds that the case was not within the jurisdiction of that court. The court based its decision on the fact that the deceased A.M. had been registered in the city of Taldykorgan.

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

According to information from the Information Exchange System of Law Enforcement and Special Authorities, the deceased A.M. had been registered during his lifetime in the village of Zhansugurov, Aksu District. Similar information regarding the deceased’s last place of residence was provided by the police authorities. Furthermore, a residential building located at the above address was registered in A.M.’s ownership.

Part 2 of Article 31 of the CPC establishes exclusive jurisdiction for claims brought by creditors of the deceased against heirs or the executor of the will (trust manager of the estate). Such claims must be filed at the location of the inherited property in accordance with the rules established by Part 1 of this article, i.e., the rules applicable to immovable property.

If the inherited estate includes movable property (bank deposits, a share in the charter capital of a business partnership, cooperative shares, etc.), creditors’ claims are subject to the general jurisdiction rule, namely, at the location of the defendant.

Disputes concerning the protection of inheritance rights of minor children are, pursuant to Part 3 of Article 27 of the CPC, considered by Specialized Interdistrict Juvenile Courts.

In some cases, courts unjustifiably transfer cases to specialized juvenile courts.

By the ruling of the Kyzylorda City Court dated October 2, 2024, the claim of I. against A. seeking recognition of a waiver of inheritance as unlawful and invalidation of a certificate of inheritance rights was transferred to the Specialized Interdistrict Juvenile Court of the Kyzylorda Region on the grounds that the defendant owed child support arrears to the plaintiff for the maintenance of minor children.

The appellate panel disagreed with the conclusions of the first-instance court and overturned the ruling, remitting the case to the same court for consideration on the merits. The panel noted that the claim had not been filed in the interests of minors, who were not heirs of the deceased.

The general jurisdiction rule (at the defendant’s place of residence or location) applies to all other disputes arising from inheritance rights, including disputes concerning the invalidation of wills, certificates of inheritance rights (except certificates relating to rights to immovable property), and similar matters.

By the ruling of the Judicial Panel 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, returning a claim filed by a Limited Liability Partnership (LLP) against S. and F. seeking invalidation of a certificate of inheritance by law, was overturned.

In returning the claim, the first-instance court reasoned that the plaintiff was a legal entity, the defendant S. was registered as an individual entrepreneur, and the dispute concerned a share in common ownership within a farming enterprise. Therefore, the court concluded that the dispute was corporate in nature and fell within the jurisdiction of the Specialized Interdistrict Economic Court.

The appellate panel found these conclusions unfounded, noting that S. was neither a participant in the LLP nor in the farming enterprise, nor a manager or former manager of those entities. Consequently, the court’s conclusion that the dispute was corporate contradicted Article 27 of the CPC. S.’s status as an individual entrepreneur was irrelevant for determining the jurisdiction of the Specialized Economic Court, since the LLP’s claim concerned challenging a title document belonging to an individual.

According to Article 307 of the CPC, applications for the establishment of a legally significant fact must be filed at the applicant’s place of residence, except for applications concerning the existence of documents confirming ownership, use, and/or disposal of immovable property, which must be filed at the location of the immovable property.

By the decision of the Taraz City Court of the Zhambyl Region dated December 6, 2024, the application of L.T. for the establishment of the legally significant fact of the place where the inheritance was opened was granted. The city of Taraz was recognized as the place where the inheritance was opened following the death of L.S., who died on October 24, 1999.

The application to the court was prompted by a resolution of Notary S. dated October 11, 2024, whereby the applicant was refused issuance of a certificate of inheritance rights following the death of her spouse and was advised to apply to the court to determine the place where the inheritance was opened. The refusal was based on the fact that the spouse had not been registered at the location of the inherited property (an apartment in Taraz) and had been deregistered from his previous place of registration.

In this case, the notary unjustifiably refused to issue the certificate of inheritance rights because, pursuant to Article 1043 of the Civil Code, the place where the inheritance is opened is the deceased’s last place of residence, and if unknown, the location of the property or its principal part. Accordingly, there were no legal grounds for the court to grant the application.

A., residing in the city of Almaty, applied to the court seeking establishment of two facts: her kinship with her grandmother U. and her acceptance of an inheritance opened after U.’s death in the city of Khromtau, Aktobe Region.

By the ruling of the Khromtau District Court dated August 2, 2024, A.’s application was returned for lack of jurisdiction with reference to Article 307 of the CPC.

The appellate court, referring to Article 31 of the CPC, overturned the ruling of the first-instance court, noting that the deceased owned immovable property.

Subsequently, by the ruling of the Khromtau District Court dated October 23, 2024, proceedings regarding the claim to establish the fact of acceptance of inheritance were left without consideration due to withdrawal of that part of the application pursuant to subparagraph 8) of Article 279 of the CPC.

By the court’s decision dated October 28, 2024, A.’s application to establish the fact of kinship was granted.

The analytical review of the Aktobe Regional Court raised the question of whether it was lawful to consider the case in the Aktobe Region from the perspective of territorial jurisdiction. According to Article 307 of the CPC, applications concerning legally significant facts must be filed at the applicant’s place of residence. The only exception concerns applications to establish the existence of documents confirming ownership, use, and/or disposal of immovable property, which must be filed at the location of such property.

In this case, the position of the appellate court appears correct, since the original application required consideration of the exclusive jurisdiction rule established by Article 31 of the CPC (establishment of the fact of acceptance of an inheritance consisting of immovable property).

Regulatory and Legal Framework

The following legal acts regulate these legal relations and are applicable when considering cases of this category:

• The Constitution of the Republic of Kazakhstan;
• The 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 the Protocol thereto 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 Notariate”;
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated June 29, 1999, “On Certain Issues of Application by Courts of Legislation on Inheritance”;
• Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated June 28, 2022, “On Judicial Practice in Cases Concerning the Establishment of Facts Having Legal Significance”;
• Rules for Performing Notarial Acts by Notaries, approved by Order No. 31 of the Minister of Justice of the Republic of Kazakhstan dated January 31, 2012.

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