Inheritance Lawyer Disputes related to inheritance acceptance
The defendant did not provide objective evidence confirming the validity of the claim, and therefore JSC "F" (hereinafter referred to as the Bank), as the legal successor of JSC "A", appealed to the court to the defendants K., M., R., D. to recognize the actual acceptance of the inheritance by the heir of the first stage K. The Bank motivated its claims by the fact that What happened on March 19, 2007 between JSC "A" and N. A bank loan agreement was concluded in the amount of 2,464,600 tenge, with the provision of a residential building with a plot of land belonging to the borrower at the address: 5 Zhangeldina Street, South Kazakhstan region, Turkestan (hereinafter referred to as the disputed house). By a court decision dated August 10, 2012, a debt in the amount of KZT 3,487,098 was recovered from IP N. in favor of JSC "A". JSC Borrower N. died on July 20, 2014. His wife I. died on June 6, 2014. The heirs after N.'s death are the children K., M., R., D. The inheritance business was started after N.'s death. According to the response of the Department of Internal Affairs (hereinafter – DIA) of the city of Turkestan, South Kazakhstan region, dated March 2, 2017, K. lives in the disputed house. with his family, whose inheritance rights to the property are not registered. Due to the fact that the defendant actually accepted the inheritance and did not renounce it within the time limit provided by law, the plaintiff asked the court to recognize the actual acceptance of the inheritance in the form of a disputed house by the heir of the first priority. The claim was dismissed by the decision of the Turkestan City Court of September 21, 2017, which was left unchanged by the appeal decision of the Judicial Board for Civil Cases of the South Kazakhstan Regional Court of December 8, 2017. The Judicial Board for Civil Cases of the Supreme Court left the judicial acts of the local courts unchanged, and the petition of the representative of JSC "F" was dismissed on the following grounds.
By virtue of paragraph 2 of Article 1072-1 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), it is recognized, until proven otherwise, that the heir has accepted the inheritance if he has committed acts indicating the actual acceptance of the inheritance, in particular, if the heir: – took possession or management of the inheritance property; - took measures to preserve the inheritance property, protecting it from encroachments or claims of third parties; - made expenses at his own expense for the maintenance of the inherited property; - paid the testator's debts at his own expense or received money owed to the testator from third parties. In support of its arguments, the Bank referred to the response of the Department of Internal Affairs of the city of Turkestan dated March 2, 2017, stating that K. lives in the disputed house. with my family. According to the plaintiff, the defendant actually accepted the inheritance, and did not renounce the inheritance within the time limit provided by law. In this regard, the Bank asked the court to recognize the acceptance of the inheritance in the form of a disputed house by the heir of the first stage. The courts of first instance and the courts of appeal concluded that the acceptance of the inheritance was in absentia. No one has the right to force an heir to obtain a certificate of inheritance, since in accordance with paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009 No. 5 "On certain issues of the application of inheritance legislation by courts" this is the heir's right, not an obligation. In this connection, the Bank's claim was denied. In addition, the plaintiff has the right to apply other methods of protecting his violated right provided for in Article 9 of the Civil Code. Further, the decision of the court of first instance stated that in the court session the defendant K. He did not admit the claim and explained that he temporarily lived in the disputed house. Besides him, his sister D. and brother M. also lived in the same house. And they have not yet decided who will inherit the disputed house after the death of their parents.
Inheritance Lawyer Disputes related to inheritance acceptance
The response of the Department of Internal Affairs of the city of Turkestan is based only on data from a survey of persons living at the above address, accompanied by documents from the defendant and his deceased parents. In the opinion of the court of first instance, the plaintiff did not provide objective evidence of the defendant's acceptance of the inheritance. The appellate instance did not agree with the court of first instance in this part, pointing out that the defendant K. at the court hearing recognized the acceptance of the inheritance after the death of his parents. However, the audio and video recordings of the trial attached to the case file contain only a recording of the announcement of the court decision by the court of first instance. The course of the trial, including the explanations of defendant K., was not recorded. In this regard, the statement of the court of appeal that K. had confirmed the actual acceptance of the inheritance, that he bore the burden of maintaining the disputed house, was in fact not confirmed by anything. Meanwhile, in accordance with the requirements of part 1 of Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating production. The Bank has not provided objective evidence confirming the validity of the claim, namely: address information about the place of residence of the defendant and his family members, other legal heirs, utility bills, etc.
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