Recognition of the certificate of the right to inheritance by law and invalidation of the right of inheritance

The judicial authorities incorrectly applied the norms of substantive law and gave an inadequate assessment of the circumstances established in the case. The adopted judicial acts cannot be recognized as legitimate and justified. Sh. filed a lawsuit against his sister Z., indicating that he has been registered and lives in a housing estate on Pishchevaya Street in the city of Karaganda for many years. His parents, father A., who died on January 05, 1995, and mother L., who died on June 15, 2010, lived with him in the house they owned. In 2012, he learned that this house, where he still lives, is being sold by his sister Z., to whom their mother, after receiving a certificate of inheritance, signed a donation agreement in 2007. Considering that after the death of his father, he, along with his mother, actually accepted the inheritance, the plaintiff Sh. He asked to recognize the certificate of inheritance under the law of November 28, 1995, issued in the name of L. on the house, invalid in the part that concerns his right of inheritance.

Recognition of the certificate of the right to inheritance by law and invalidation of the right of inheritance

He also asked for the house donation agreement dated August 09, 2007, issued to his sister Z., to be partially invalidated. Subsequently, the plaintiff supplemented the claims for determining 1/3 of his share in the named housing construction. By the decision of the district court no.2 of the Kazybekbi district of Karaganda city dated October 25, 2012, the claim was partially satisfied. The certificate of inheritance right under the law dated November 28, 1995 and the donation agreement dated August 09, 2007, issued for the disputed housing construction, were declared invalid in part 3/8 of the shares due to the testator's three children. The rest of the claim was denied. By the resolution of the Appellate Judicial Board for Civil and Administrative cases of the Karaganda Regional Court dated January 30, 2013, the court's decision was changed. The board decided to invalidate the said certificate of inheritance and the donation agreement in part 1/8 of the share due to plaintiff Sh. By the decision of the Cassation Judicial Board of the Karaganda Regional Court dated March 29, 2013, the decision of the appellate instance remained unchanged. In the petition, the plaintiff's representative Yu. He asked to review the decisions of the appellate and cassation instances, as adopted in violation of the substantive law, and to uphold the decision of the court of first instance. He indicated that the inheritance after the death of the parties' father was accepted only by their mother and the plaintiff. The defendant Z. and the plaintiff's second sister I. did not live in the house at that time and did not accept the inheritance in accordance with the established procedure. However, the courts of appeal and cassation essentially secured for them the right to 2/8 of the inheritance house, infringing on the rights of the plaintiff Sh. by determining for him only 1/8 of the share in the inheritance.

Supervisory Judicial Board of the Supreme Court decision of the District Court No.2 Kazybekbi district of Karaganda city, the decisions of the appellate and cassation judicial boards of the Karaganda Regional Court in this case were overturned and a new decision was made. The claim of S. partially satisfied. The certificate of the right to inheritance according to the law issued by L. on November 28, 1995 by the state notary D., registered in the register for No. 1-4-3480, and the deed of donation of the house building at the above address, certified by a private notary G. On August 09, 2007, registered in the register No. 9-4936, declared invalid a quarter of the share of the named housing construction. I determined this share for the plaintiff Sh. for the following reasons. It is clear from the case file that the disputed house in the city of Karaganda belonged to the married parents of the parties. At the time of his father's death, their mother L. and the plaintiff Sh. lived in the house, who actually took over half of the inherited house from their father in accordance with the procedure of Article 542 of the Civil Code in force at that time. This provision of the Civil Code, as well as the provisions of Articles 1072-1 and 1072-2 of the Civil Code in force since February 03, 2007, provided for two ways of accepting inheritance, namely by submitting an application to a notary by the heirs or by the method when the heir actually took possession or management of the inheritance property.  In this case, according to the certificate of inheritance under the law of November 28, 1995, the inheritance for the entire house was issued only to the mother on the basis of her application, without taking into account the actual acceptance of part of the inheritance by the plaintiff. The plaintiff, unlike his two sisters, lived in this house, thus actually accepted the inheritance from his father, along with his mother. The opened inheritance share was 1/2 part of the house, and each of the two heirs who accepted the inheritance was entitled to a half share of a half part of the house or a quarter share of the whole house. Thus, taking into account the ownership of the mother, as the testator's spouse, of a half-part of the house and the acceptance of a quarter of the inheritance share in it, her share in the house was a quarter of the part, and the plaintiff Sh. – in the size of 1/4 part.

Despite the circumstances established in the case and the provisions of the law governing the rules and procedure for accepting inheritance, the courts determined the inheritance shares in different ways, including the heirs according to the law (two sisters of the plaintiff), who did not accept the inheritance in accordance with the established procedure. With this in mind, the courts incorrectly invalidated the certificate of inheritance and the donation agreement, first in part 3/8, and then 1/8 of the share in housing construction, whereas the plaintiff's inheritance share is a quarter of the total housing construction. It was in this part that the plaintiff's claims were to be satisfied. Since all judicial instances have incorrectly applied the norms of substantive law and given an inadequate assessment of the circumstances established in the case, the adopted judicial acts cannot be recognized as legitimate and justified. They are subject to cancellation with the adoption of a new decision on the invalidity of the certificate of inheritance and the donation agreement in part of a quarter of the share, with the determination of this share in housing construction for the plaintiff. 

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