Lawyer for civil cases in Almaty Establishing the fact of a dependent person

By virtue of the requirements of paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On Judicial practice in cases of establishing facts of legal significance" (as amended as of March 31, 2017), courts should keep in mind that establishing the facts of a dependent person (subparagraph 2) of the second part of Article 305 of the CPC) has legal significance for receiving inheritance (Article 1068 of the Civil Code) or survivor's benefits (Article 940 of the Civil Code) and in other cases provided for by law. It should be borne in mind that in cases where the applicant had earnings, received a pension, scholarship, etc., it is necessary to find out whether the assistance from the person providing the maintenance was a permanent and main source of livelihood.

In order to establish the fact of dependent persons belonging to the number of heirs according to the law of the second or fifth priority, in order to inherit property together with the heirs of the queue that is called for inheritance, it is necessary that the person concerned be disabled and be dependent on him for at least a year before the death of the testator (paragraph 1 of Article 1068 of the Civil Code). In order to establish the fact of dependent heirs who are not included in the circle of heirs specified in Articles 1062, 1063, 1064 of the Civil Code, it is necessary that the applicant was disabled by the day of the testator's death, lived with him and was dependent on him for at least a year before his death (paragraph 2 of Article 1068 of the Civil Code). With regard to Articles 1068 and 1069 of the Civil Code, disabled persons should include: persons under the age of eighteen; persons who have reached the retirement age established by the legislation of the Republic of Kazakhstan on pension provision; persons with disabilities of groups 1, 2, 3; persons who have reached the age of eighteen and older, who study full-time at educational institutions before graduation, but not older than twenty-three years. Disabled persons who were fully supported by the testator or who received such assistance from the testator as was their main and permanent source of livelihood should be considered as dependent on the testator. Individual cases of financial assistance provided by the testator to the heir cannot serve as proof of the fact of being dependent. The legal fact of being dependent on the testator of persons who are not legally included in the circle of heirs cannot be established, since its establishment does not entail legal consequences. By a court decision to the applicant S. It was refused to establish the fact of being dependent on S.'s common-law spouse, who died on November 29, 2011. The court's conclusion is motivated by the fact that the applicant S., being an independent recipient of pension payments, was not dependent on S., who was also a pensioner. The purpose of establishing the legal fact was to inherit a share in the ownership of the privatized apartment owned by the applicant on the basis of the privatization agreement dated September 22, 1993 No. 4. By the ruling of the Appellate judicial Board for Civil and administrative cases of the court, the decision of the court of first instance was overturned. The Appellate Judicial Board pointed out that the court of first instance had not taken into account that the pension amount was The amount of the applicant's pension exceeded the amount of the deceased's pension, the deceased's assistance was constant and systematic, they lived together, the applicant was unable to work due to her age, and receiving a pension could not be a reason for refusing to recognize a person as a dependent.

As can be seen from the example, the courts entered into a discussion of the issue of proving the fact that the applicant is dependent on the testator, but did not take into account the above requirements of the law that the legal fact of being dependent on the testator can only be established in relation to a person who is a member of the circle of heirs by law. Since S., being the testator's civil spouse, is not included in the circle of heirs by law, the establishment of the fact that she is dependent has no legal significance, does not entail legal consequences, therefore, the application should have been refused on these grounds. In another case, the court established the fact that a dependent person was found only on the grounds that the applicant was a pensioner (disabled) and the mother of the supporting person. A. applied to the court to establish the legal fact of being dependent. She stated that she was the mother of serviceman K., lived with him in a staff apartment, was a pensioner and was dependent on him. In March 2013, a three-room apartment was provided for the son's family of five. They refused to include her in the employment contract because she is not a family member. The establishment of this fact is necessary to increase the living space for her son. The court's decision, left unchanged by the court of appeal, satisfied the application. Meanwhile, the court did not establish whether the applicant had other sources of livelihood, or what amount of pension she received.  According to the provisions of the KBS, able-bodied adult children are required to provide assistance to their parents and take care of them, and the care of children for parents receiving pension payments is not their full-fledged content. The Court did not take into account that K.'s family, apart from the applicant, consisted of five people, and therefore it was not established what kind of real financial assistance he could provide to the applicant, which would be the main and permanent source of livelihood. In addition, the applicant's appeal to the court with this requirement was caused by the need to provide a court decision recognizing the fact that the parents of the serviceman were dependent in order to pay monetary compensation in return for the right to privatize the occupied official housing, which was not taken into account by the court and was not included in the list of circumstances to be clarified. 

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