On some issues of the application of inheritance legislation by the courts

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009 No. 5.

      For the purposes of uniform application of inheritance legislation, the plenary session of the Supreme Court of the Republic of Kazakhstan

      Decides:

When resolving disputes in inheritance cases, the courts should 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.

According to Article 1042 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the date of opening of an inheritance is the day of the testator's death, and when he is declared dead, the date of entry into force of a court decision declaring a citizen dead or the day of death established by a court decision. If the death of citizens who could inherit one after the other occurred simultaneously or on the same calendar day, although at different hours, then they do not inherit after each other and the heirs of each of them are called upon to inherit.

The place of inheritance opening is the testator's last place of residence.

      In accordance with Article 16 of the Civil Code, the place of residence is the locality where a citizen permanently or predominantly resides. According to paragraph 2 of Article 51 of the Law of the Republic of Kazakhstan dated July 22, 2011 No. 477-IV "On Population Migration" (hereinafter – the Law "On Population Migration"), registration of citizens is carried out at the place of residence and at the place of temporary stay (residence). In accordance with subparagraph 17-1) of Article 1 of the Law "On Migration of the Population", a place of temporary stay (residence) is a building, room, or dwelling with an address that is not a place of residence and in which a person resides (resides) temporarily. As a rule, the testator's last place of residence coincides with the place of permanent residence.

      If the last place of residence of the testator who owned property in the territory of the Republic of Kazakhstan is unknown or located outside of it, the location of such inherited property in the Republic of Kazakhstan is recognized as the location of the inheritance (location of immovable property, place of registration of movable property, location of the bank where the testator's account is opened, etc.). If the specified inheritance is located in different places, the place of opening of the inheritance is the location of the immovable property included in it, and in the absence of immovable property, the location of the movable property or its most valuable part. The value of a property is determined based on its market value.

      In cases where the testator's place of residence is known to the heirs, but they cannot document it for any reason, the legal fact of the place of inheritance opening may be established by the court at the request of the heir in accordance with Articles 305, 306, 307, 308, 309 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC).

      In the event of the death of a citizen outside his permanent place of residence (for example, in connection with active military service, training, conditions and nature of work, business trip, placement in a medical institution, incarceration, etc.), the last permanent place of residence of such persons is the place where they permanently resided before death (before conscription for military service, before enrolling in studies, before going on a business trip, before being convicted, etc.).

     The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

In accordance with Article 51 of the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated October 7, 2002, ratified by the Law of the Republic of Kazakhstan dated March 10, 2004, which has legal force for the States parties to this Convention, authorized institutions of the Contracting Party are competent to conduct proceedings on inheritance of movable property, on the territory of which the testator had his place of residence at the time of death.

      The authorized institutions of the Contracting Party in whose territory the property is located are competent to conduct proceedings on inheritance of immovable property.

      The same provision is enshrined in article 48 of 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. This Convention applies in the relations between a State party to the Chisinau Convention and a State party to it, but for which the Chisinau Convention has not entered into force.

In accordance with paragraph 1 of Article 1072 of the Civil Code, in order to acquire an inheritance, an heir by law or by will must accept it. The method of acceptance of the inheritance is determined by the law in force at the time of the opening of the inheritance.

      An inheritance opened before the enactment of the Civil Code (Special Part) (before July 1, 1999) and after the enactment of the amendments made to the Civil Code (Special Part) by the Law of the Republic of Kazakhstan dated January 12, 2007 (from February 3, 2007) must be accepted by the heir by filing at the place of opening of the inheritance to a notary public or an official authorized in accordance with the law to issue a certificate of inheritance, an application for acceptance of inheritance, or a certificate of inheritance, or by actually accepting it.

      The actual acceptance of an inheritance is understood as the actions of the heir, which indicate his entry into possession and use of the latter's property after the death of the testator, the implementation of actions for the maintenance and protection of his property, the payment of his debts and taxes related to the inherited property, or the receipt of payments due to the testator, property values that are subject to inclusion in the estate.

      These actions must be performed by the heirs within six months of the opening of the inheritance.

      Other persons for whom inheritance occurs as a result of the refusal of the heir from the inheritance, the non-acceptance of the inheritance by another heir, or the removal of the heir from inheritance on the grounds set out in Article 1045 of the Civil Code, have the right to accept the inheritance within six months from the date on which they have the right to inherit.

      According to the inheritance, which was opened in the period from July 1, 1999 to February 3, 2007, the heir acquires the right to the inheritance due to him or her or part of it (share) from the time of its opening, provided that he does not renounce the inheritance within six months from the day when he learned or should have learned about his vocation to He will not be deprived of the right to inherit on the grounds provided for in Article 1045 of the Civil Code, and will not lose the right to inherit as a result of invalidation of a testamentary disposition appointing him heir in accordance with the procedure established by law.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

An inheritance accepted in accordance with the established procedure is recognized as belonging to the heir from the date of its opening. Therefore, obtaining a certificate of inheritance is the right, not the duty, of the heir, and the absence of such a certificate cannot serve as a basis for the loss of inheritance rights.

If the heir actually accepted the inheritance by performing any of the actions specified in paragraph 2 of Article 1072-1 of the Civil Code, but the notary for some reason refused to issue a certificate of inheritance, the heir has the right to appeal the notary's actions to the court in a special procedure.

      In cases where the heir has actually accepted the inheritance, but cannot provide the notary with the indisputable evidence necessary to obtain a certificate of inheritance, and it is not possible to obtain them in any other way, the heir has the right to apply to the court with an application to establish the legal fact of acceptance of the inheritance, which is considered in a special procedure. If there is a dispute about the law, then the establishment of such a fact is carried out in a lawsuit.

An application for renunciation of inheritance can be submitted to a notary both at the personal appearance of the heir to the notary at the place of opening the inheritance, and by mail within six months from the day when the heir learned or should have learned about his vocation to inherit. When sending the application by mail, the signature on the application must be attested. A notary, an official of the office of the akim of a city of district significance, a settlement, a village (village), a village (rural) district authorized to perform notarial acts in the absence of a notary in a locality, as well as an official performing consular functions on behalf of the Republic of Kazakhstan in cases when the heir is temporarily or permanently lives abroad.

      It is allowed to submit such an application by a representative of the heir by proxy, provided that the power of attorney issued in accordance with Article 167 of the Civil Code specifies the authority to renounce the inheritance.

      Legal representatives of minors under the age of fourteen (their parents, adoptive parents, guardians), as well as guardians of persons recognized as legally incompetent in accordance with the established procedure, act without a power of attorney. However, in order to renounce the inheritance, they need to obtain permission from the guardianship authority.

Minors between the ages of fourteen and eighteen, persons with limited legal capacity by a court decision, have the right to renounce inheritance with the consent of their parents, adoptive parents, and guardians. The latter can give consent only with the permission of the guardianship authority.

      In accordance with paragraph 1 of Article 1074 of the Civil Code, the heir loses the right to renounce the inheritance after the expiration of the period provided to him for this (six months), as well as upon the actual acceptance of the inheritance. The beginning of the term for renouncing inheritance is determined by the moment when the heir learned or should have learned about his vocation to inherit. The period for renunciation of inheritance may be extended by the court if there are valid reasons, but not more than two months.

      In the event that the court considers the dispute of the heirs about the inheritance property, the waiver of the share in the inheritance cannot be declared in court by the heir and is not subject to acceptance by the court.

A person who has renounced an inheritance cannot subsequently revoke or change his refusal. In cases where the renunciation of the inheritance was not voluntary (committed under duress by other persons, due to deception or delusion, etc.), the heir has the right to challenge it in court on the grounds provided for by the Civil Code to invalidate the transaction.

      In cases where the heir is called upon to inherit both by will and by law, he has the right to renounce the inheritance due to him on either or both grounds.

      In accordance with paragraph 8 of Article 1074 of the Civil Code, renunciation of inheritance with reservations or under conditions is not allowed. If the heir renounces part of the inheritance, it is considered that he has renounced the entire inheritance. However, this rule does not apply if the heir renounces the inheritance due to him by right of increment according to Article 1079 of the Civil Code.

The heir called to inherit has the right to renounce the inheritance in favor of other persons from among the heirs according to the will or heirs according to the law of any turn, including in favor of heirs who are called to inherit by right of representation or without specifying specific persons. Renunciation of inheritance in favor of heirs by right of representation who are not called upon to inherit, heirs deprived of inheritance in a will according to paragraph 4 of Article 1046 of the Civil Code by the testator, or recognized as unworthy heirs, is not allowed.

      If the heir who has the right to a mandatory share in the inheritance has waived his right to receive a mandatory share within the time limit prescribed by law, then his share in the property passes to the heirs according to the will. The right to a mandatory share is related to the identity of the heir, therefore, renunciation of inheritance in the mandatory share in favor of other persons is not allowed.

      In cases where the testator has bequeathed all his property to the heirs appointed by him, the part of the inheritance owed to the renounced heir without specifying the heirs in whose favor he renounces, or to the deceased heir, passes to the remaining heirs according to the will and is distributed proportionally to their shares, since nothing else is provided by the will. A defunct heir is an heir who renounced the inheritance, or who did not accept the inheritance within the time limits established by Article 1072-2 of the Civil Code, as well as who did not actually accept the inheritance and died earlier than the testator.

Considering the application of the heir to restore the time limit for accepting the inheritance in accordance with Article 1072-3 of the Civil Code, the court may restore the time limit and recognize the heir as having accepted the inheritance if the following conditions are met::

      there is no evidence of the actual acceptance of the inheritance;

      the deadline was missed for a valid reason (illness of the heir, as well as circumstances preventing the filing of an application for acceptance of the inheritance);

      the heir went to court no later than six months after the reasons for missing this period disappeared.

      At the same time, it should be borne in mind that the six-month period for applying to the court for reinstatement of the inheritance period is not subject to restoration in accordance with Article 126 of the CPC. Since the determination of the beginning of this period is related to the end of the circumstances that caused the omission of the deadline for accepting the inheritance, the application for restoring the deadline for accepting the inheritance and recognizing the heir as having accepted the inheritance is accepted by the court regardless of the expiration of the six-month period specified in Article 1072-3 of the Civil Code.

     The validity of the reasons for missing the deadline for accepting the inheritance and recognizing the heir as having accepted the inheritance is determined by the court, depending on the specific circumstances of each case.

     The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

An application for the restoration of the time limit for accepting an inheritance and recognizing the heir as having accepted the inheritance is subject to consideration in court at the location of the inherited property or its main part in the order of claim proceedings, with the participation of other heirs who have accepted the inheritance. In the absence of such heirs, the body authorized to manage communal property at the place of inheritance opening is involved in the case, since acceptance of inheritance is not required for the acquisition of extortionate property.

      Upon satisfaction of the application, the court in the operative part of the decision indicates the restoration of the term and recognition of the heir as having accepted the inheritance, and also, if there is a certificate of inheritance issued by a notary, determines the shares of all heirs, obliges the registering authorities to register the heir's right to the testator's property, and invalidates the certificate of inheritance. If necessary, the court must take measures to protect the rights of the new heir to receive his share of the inheritance in accordance with articles 156 and 245 of the CPC.

      If claims are also made for the division of inheritance, the court, based on the provisions of the second part of Article 225 of the CPC, is obliged to make a decision on the merits of the claim.

     In cases where the notary has not issued a certificate of the right to inheritance, upon satisfaction of the application in the operative part of the decision, the court indicates the restoration of the term and recognition of the heir as having accepted the inheritance. The court's decision is the basis for the notary's issuance of a certificate of inheritance.

     The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

A certificate of inheritance is issued to heirs by a notary public or an official authorized by law to issue a certificate of inheritance at the place of opening of the inheritance after six months from the date of opening of the inheritance.

      A certificate of inheritance, both by law and by will, may be issued before the expiration of this period, provided that the notary or official has reliable, documented information about the absence of other heirs in relation to the inherited property.

      If there are doubts about the accuracy of the information provided, the notary has the right to refuse to issue a certificate of inheritance ahead of schedule. These actions do not constitute an obstacle to the issuance of a certificate of inheritance after the expiration of a six-month period from the date of the opening of the inheritance.

According to Article 1044 of the Civil Code, heirs by will and law may be citizens who are alive at the time of the discovery of the inheritance, as well as those conceived during the testator's lifetime and those born alive after the discovery of the inheritance.

      Legal entities established before the opening of the inheritance and existing at the time of the opening of the inheritance, as well as the state, may be heirs under the will.

      Heirs are legally called upon to inherit in the order of priority provided for in Articles 1061, 1062, 1063, 1064 of the Civil Code. Each subsequent succession of heirs is legally entitled to inherit in the absence of heirs from the previous succession.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

Disabled dependents of the testator have the right to receive a share in the opened inheritance if they were unable to work at the time of the opening of the inheritance and were dependent on him for at least a year before the death of the testator.

      Disabled persons who are legally considered heirs, as specified in Articles 1062, 1063, 1064 of the Civil Code, inherit together and on an equal basis with the heirs of the queue that is called for inheritance, regardless of whether they lived together with the testator or not. Disabled persons who are legally considered heirs and are not included in the circle of heirs specified in Articles 1062, 1063, 1064 of the Civil Code inherit together and on an equal basis with the heirs of the line that is called for inheritance if they lived together with the testator.

      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, studying full-time in educational institutions before graduation studies, 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 dependency.

The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

In accordance with Article 1067 of the Civil Code, the share of an heir legally deceased before the opening of the inheritance passes by right of representation to his descendants in the cases provided for in paragraph 2 of Article 1061, paragraph 2 of Article 1062 and paragraph 2 of Article 1063 of the Civil Code.

      The share of the deceased heir is divided equally among the descendants who are legally related to the represented heir.

      In the absence of heirs according to the will or according to the law of the corresponding queue, as well as heirs by right of representation to the share of the heir according to the law in the opened inheritance, the heirs of the next queue are called upon to inherit.

By way of hereditary transmission, the right of an heir by law or by will to accept an inheritance that opened after February 3, 2007, passes to his heirs if he died before he could accept the inheritance within the time limit set by Article 1072-2 of the Civil Code for accepting the inheritance (six months from the date of opening the inheritance).

      The share of such an heir in the opened inheritance may pass to his heirs, both by law and by will on a general basis during the remaining part of the six-month period for accepting the inheritance. If the remaining part of the term is less than three months, the term is extended to three months by a notary or a person authorized to issue a certificate of inheritance.

      The transfer of the testator's property to his heirs in the order of hereditary transmission in respect of the inheritance opened in the period from July 1, 1999 to February 3, 2007 is excluded.

A citizen may bequeath all or part of his property to one or more persons, both within and outside the circle of heirs by law, as well as to legal entities and the State.

      Within the meaning of Articles 1046, 1050 of the Civil Code, the right to make a will belongs only to capable citizens. The verification of legal capacity is carried out by the person certifying the will, therefore, a notary or an official authorized to certify the will, when performing this notarial act, conducts conversations with the person who expressed a desire to make a will, and establishes the true will of the testator to dispose of the property, as well as the correct perception of the current situation and understanding of his actions.

A will may be declared invalid in whole or in part at the request of a person for whom the recognition of the will as invalid has property consequences, due to a violation of the procedure established by Articles 1050 , 1051, 1052 of the Civil Code of the procedure for drawing up, signing and certifying a will, as well as on the grounds established by civil law for invalidating the transaction (Chapter 4 of the Civil Code).

      When a will is declared invalid, inheritance is opened by law. An heir under a will who is deprived of the right to inherit due to the cancellation of this will may be called upon to inherit by law in accordance with Article 1060 of the Civil Code.

When considering a dispute between heirs about the legality of a will, the courts should be guided by the law (paragraph 2 of Article 153, paragraph 1 of Article 154, Articles 1050, 1051, 1052 of the Civil Code), which attaches special importance to the form and content of the will, since its validity depends on their observance.

      When resolving a dispute about the invalidity of a will on the grounds of paragraph 7 of Article 159 of the Civil Code, courts should keep in mind that an expert's opinion on the testator's mental and physical condition is not binding on the court. When examining the expert's opinion, the court takes into account not only the operative part of the opinion, but must also examine the descriptive part of the opinion. The expert's conclusions should correspond to the descriptive part of the examination based on the evidence available in the case file. Disagreement with the expert's opinion must be motivated by the court in accordance with part seven of Article 92 of the CPC.

      When filing a claim for invalidation of a will on the grounds of non-separation of the spouse's share in the common property of the spouses at the time of making the will, as well as the mandatory share of minor children or disabled persons (children, spouse, parents), the court, in accordance with subparagraph 1) of the first part of Article 152 of the CPC, returns the statement of claim and recommends contacting a notary at the place of opening the inheritance.

      When a notary has issued a certificate of the right to inheritance under a will without allocating the surviving spouse's share in the common property of the spouses and without taking into account the mandatory share of the persons specified in Article 1069 of the Civil Code, interested persons have the right to file a claim with the court for recognition of the certificate of the right to inheritance under the will as invalid in part of the share due to the surviving spouse, or the mandatory share of disabled persons.

     Typos and other minor technical violations committed during the drafting, signing or certification of a will may not serve as grounds for the invalidity of a will, if the court finds that they do not affect the understanding of the will of the testator.

     The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

According to Article 1069 of the Civil Code, when inheriting a will, the testator's minor or disabled children, including the adopted, disabled spouse, parents (adoptive parents) of the deceased, regardless of the content of the will, inherit at least half of the share that would be due to each of them if inherited by law (mandatory share). On the day of the opening of the inheritance, these persons must be minors or disabled. At the same time, the law does not link the emergence of the right to a mandatory share in the inheritance of these persons with their being dependent on the testator, with living together and running a common household with the testator.

      Any restrictions and encumbrances established in the will for the heir who is entitled to a mandatory share in the inheritance are valid only for that part of the inheritance passing to him which exceeds the mandatory share.

      If the heir who has the right to a mandatory share in the inheritance has died without receiving a certificate of the right to inheritance, then the mandatory share of such heir passes to the heirs according to the will. The right to a mandatory share is linked to the identity of the heir, therefore, in the event of the death of such an heir, the right to demand the allocation of a mandatory share in the order of hereditary transmission cannot pass to his heirs.

The grounds for calling an heir to inherit who is entitled to a mandatory share in the inheritance are established at the time of the opening of the inheritance, therefore, failure to specify such heirs in the will cannot be grounds for invalidating the will.

      If the heir has received a certificate of the right to inheritance under a will without allocating the share due to the heir entitled to the mandatory share, then such certificate of the right to inheritance may be invalidated in respect of the mandatory share of the heir at the claim of the heir entitled to the mandatory share in the inheritance.

      When considering a dispute over the allocation of a mandatory share in an inheritance, the courts, when determining its size, must determine the value of all inherited property, including items of ordinary household furniture (for example, furniture, household appliances, etc.) and take into account all heirs who would be called upon to inherit by law if the inheritance procedure had not been changed by the will.

      Personal items (shoes, clothing), items for professional activities, and items intended for children cannot be classified as items of ordinary household furniture.

In accordance with Article 1040 of the Civil Code, the inheritance includes property belonging to the testator, as well as rights and obligations, the existence of which does not cease with his death.

      The composition and location of the inherited property is checked by a notary on the basis of the title and crediting documents submitted by the heirs to the property, as well as securities, monetary documents, etc. belonging to the testator.

      In the absence of registration of ownership of immovable property at the time of the opening of the inheritance for the testator, the notary has the right to issue to the heir a certificate of the right to register the testator's ownership, if title or identification documents for the property are submitted in the name of the testator.

      For buildings located on a land plot owned by the testator on the right of ownership or the right of permanent land use, but not put into operation, the notary has the right to issue a certificate to the heirs for the commissioning of this property on behalf of the testator.

      Inheritance of real estate built without permission (on a plot of land not allocated for these purposes, without obtaining the necessary building permits, etc.) can only take place in court. The notary has no right to issue a certificate for registration of ownership of such property in the name of the testator.

The inheritance is divided by agreement of the heirs in accordance with the shares due to them, indicated in the certificate of inheritance rights issued in accordance with the procedure established by law. If an agreement is not reached, the inheritance is divided in court.

      If, when accepting a statement of claim for the division of inheritance for which no certificate of inheritance has been issued, the court, having established that the time limit provided for in paragraph 2 of Article 1073 of the Civil Code for issuing a certificate of inheritance has not expired, is obliged to return the application in accordance with subparagraph 1) the first part of Article 152 of the CPC and explain the procedure for obtaining a certificate of inheritance.

The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

In the absence of an agreement between the heirs on the division of the inherited property, the dispute is resolved by the court.

      When considering a case on the division of inherited property, the court cannot accept the refusal of the heir from the share due to him in the inherited property, but must proceed from the shares indicated in the certificate of inheritance and be guided by the requirements of Article 218 of the Civil Code. However, such an heir, depending on the procedural situation in the case, has the right to commit the actions specified in Article 48 of the CPC.

     The footnote. Paragraph 25 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

When resolving disputes about the division of inherited property for which no certificate of inheritance has been issued, the court must determine its composition and the actual (market) value. the cost at the time of consideration of the case, to establish the circle of heirs. At the same time, it should be borne in mind that the property subject to division, according to Article 1040 of the Civil Code, includes property belonging to the testator, as well as rights and obligations, the existence of which does not cease with his death.

      Property benefits and rights (property) according to paragraph 2 of Article 115 of the Civil Code include: things, money, including foreign currency, financial instruments, works, services, objectified results of creative intellectual activity, brand names, trademarks and other means of individualization of products, property rights and other property. In addition, heirs may exercise and protect personal non-property rights and other intangible benefits belonging to the testator (dignity and honor of the testator, good name, right to authorship, right to inviolability of the work, etc.).

      The contributions of the spouses acquired during the marriage period are their common joint property. When allocating the testator's share in common joint ownership, contributions made in the name of the surviving spouse should be taken into account.

      The division of inherited property between heirs according to a will is possible in cases where all or part of the property is bequeathed to the heirs in shares without specifying a specific property.

      When allocating a share in kind from the inherited property to an heir who has the right to a mandatory share in the inheritance, the share of such an heir is determined first at the expense of the property inherited by law, and the missing part can be satisfied at the expense of the property specified in the will.

Minors and disabled children, as well as the disabled spouse, parents and dependents of the insured, as a rule, are not entitled to receive any part of the insured sum after his death, unless they were appointed to receive it.

      Insurance payments are included in the inheritance of the insured in the following cases::

      if the death of the insured was the case stipulated by the insurance contract, when the insured is not the policyholder, or is one, but the beneficiary is not indicated in the contract.;

      if the insured died from intentional criminal acts of the person (beneficiary) who was supposed to receive insurance payments under the contract;

      if the insured died before receiving the payments due to him under the accumulative insurance contract, the validity of which has expired;

      in case of death of citizens whose life and health are subject to compulsory insurance in accordance with legislative acts (passengers of air, rail, sea, inland waterway and motor transport).

     In the event of the death of a person who is not an insured person, in respect of whom a property insurance contract has been concluded, his rights and obligations on the property that was the object of insurance, with the consent of the insured, shall pass to his heirs, unless otherwise provided by legislative acts or the contract.

     The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

In accordance with subparagraph 3) paragraph 1 of Article 22, Article 40 of the Land Code of the Republic of Kazakhstan a land plot owned by a citizen, the right of long-term temporary land use is inherited in accordance with the procedure established by the civil legislation of the Republic of Kazakhstan. In case of inheritance of the right of temporary short-term land use, the transfer of this right in the order of inheritance is carried out in the same manner, unless otherwise stipulated by the temporary land use agreement.

The property of a peasant farm belongs to its members by right of joint ownership, unless otherwise provided by an agreement between them.

      The property of a farm organized in the form of a simple partnership on the basis of a joint activity agreement belongs to its members on the right of common shared ownership.

      The property of a farm based on personal entrepreneurship belongs to it by right of private ownership.

      In accordance with Article 1082 of the Civil Code, in the event of the death of a member of a peasant or farm, inheritance is opened according to the general rules. Heirs have the right to receive monetary compensation commensurate with their share in the common ownership of this property, with the exception of the opening of an inheritance on the property of a farm based on the personal entrepreneurship of the testator.

      If the agreement on the establishment of a peasant or farm provides for the admission of heirs to membership in such farms, then with the consent of the members of the general meeting of the peasant or farm, the heir of a deceased member of such farm may be admitted to membership within the limits of the hereditary share.

      The property of a peasant or farm can be divided among the heirs only in case of termination of the activity of such a farm.

The share of a participant in a limited liability company, an additional liability company, a production cooperative, or a general partnership passes to the heirs in accordance with the Civil Code. Heirs are subject to membership in these business entities, unless otherwise provided for in their constituent documents. Refusal to be accepted as a participant may be appealed to the court by way of claim proceedings.

      If the heirs refuse to join the list of participants or the said business entities refuse to accept such acceptance, the heirs are paid the value of the share of the property owned on the basis of succession, determined on the day of the participant's death, taking into account assets and liabilities.

      In the event of the death of a participant in a joint-stock company, the shares belonging to him pass to the heirs in the order of inheritance, not only as property, but also as the totality of the testator's rights certified by them.

Within the meaning of article 33 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the property acquired by the spouses during marriage includes pensions, benefits received by them, as well as other monetary payments that do not have a special purpose. Based on this, pension savings in the accumulative pension fund that were not received by the testator during his lifetime do not relate to the jointly acquired property of the spouses.

      In accordance with Articles 31, 32, 33 of the Law of the Republic of Kazakhstan dated June 21, 2013 No. 105-V "On Pension provision in the Republic of Kazakhstan", in the event of the death of a person who has pension savings in an accumulative pension fund due to mandatory, voluntary, voluntary professional contributions, they are inherited in accordance with the procedure established by the legislation of the Republic of Kazakhstan..

     The footnote. Paragraph 31 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

According to Article 1078 of the Civil Code, heirs who lived together with the testator during the year before the opening of the inheritance have a preferential right to inherit the dwelling, as well as household utensils and household items. Heirs who, together with the testator, possessed the right of common joint ownership of property, have the pre-emptive right to inherit property that was in common ownership. When exercising these preferential rights, it should be assumed that the testator's property passes to the specified heirs in compliance with the property interests of other heirs involved in the division of the inheritance, by paying monetary compensation.

      Antique items, as well as objects of artistic, historical or other value, cannot be items of household furniture and household items. To clarify questions about the artistic, historical or other value of the object about which a dispute has arisen, the court may order an expert examination.

By virtue of paragraph 4 of Article 8 of the Civil Code, the heirs, the executor of the will, and the notary are required to take reasonable and necessary measures to establish the location of the heir who has not renounced the inheritance within the time limits established by Article 1074 of the Civil Code. When determining the location of such an absent heir, but who has not received a certificate of inheritance, other heirs may divide the inheritance in compliance with the provisions of Article 1077 of the Civil Code.

In the event of the appearance or announcement of an absent heir and the filing of a claim against the inheritance, the division of which has been made, the court is obliged to verify whether the heirs who divided the inheritance among themselves have fulfilled the requirements of Article 1077 of the Civil Code. Subject to the provisions of this article, the actions of the heirs and the notary should be recognized as legitimate. In such cases, the absent heir has the right to make demands to the heirs who have accepted the inheritance, either to allocate his share of the inheritance, if any, in kind, or to pay the share of the inheritance due to him in monetary terms.

According to paragraph 2 of Article 1038 of the Civil Code, the inheritance of a deceased citizen passes to other persons under the terms of universal succession as a whole at the same moment. In the order of universal succession, not only the hereditary property passes to the heirs, as well as not only the property and individual non-property rights of the testator, but also his duties. Therefore, according to Article 1081 of the Civil Code, heirs who have accepted an inheritance are liable for the obligations of the testator as joint debtors within the limits of the value of the property transferred to each heir.

      An heir who has accepted an inheritance by way of hereditary transmission is liable, within the limits of the value of this property, for the debts of the testator to whom this property belonged, and is not liable with this property for the debts of the heir from whom the right to accept the inheritance has passed to him.

In connection with the adoption of this resolution, to invalidate the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated December 18, 1992 "On certain issues of the application of inheritance legislation by courts".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman of the Supreme Court

 

Republic of Kazakhstan

M. Alimbekov

Judge of the Supreme Court

 

Republic of Kazakhstan,

 

Secretary of the plenary session

J. Baishev

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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