Restoration of the deadline for accepting the inheritance | recognition of the heir as having accepted the inheritance

Based on the privatization agreement dated September 22, 1992, the apartment located at 25 M Street, Almaly district, Almaty, apartment 34 (hereinafter referred to as the apartment) is jointly owned by the following persons: 1) ERW; 2) EAG, born on May 25, 1955; 3) ESA, born on April 03, 1980; 4) BVN, born on August 25, 1976; 5) EEA, born on January 10, 1987. EA.G. and ER.V. were in a registered marriage. The marriage between them was dissolved on July 05, 1995. S.A., B.N., and E.E.A. are the children of R.V. B.N. he was adopted in 1993 by GR.T., the mother of ER.V., with the assignment of a new surname and patronymic, now GWP. E.A. was adopted in 1996 by GR.T., with the assignment of a new surname and patronymic, now X EP. GV.P. and X E.P currently resides in the Federal Republic of Germany (FRG), they are citizens of Germany. ER.V. died on March 01, 2003. The plaintiff, E.V., has been in a registered marriage with S.A. since December 28, 2005, and has two minor children: EES, born on March 01, 2006 and EES, born on April 30, 2010. E S.A. died on November 27, 2020. For the inherited property in the form of 1/5 of the share in the above-mentioned apartment, which opened after the death of S.A., the notary Asabayeva M.K. issued a certificate of inheritance dated July 03, 2021, according to the law, to the heirs of the deceased: his wife EO.V., daughters - EE and EE. The notary also issued M.K. Asabayeva a certificate of inheritance rights under the law of July 03, 2021 for the inherited property opened after the death of S.A. to his father, EA.G. The plaintiff, EO.V., filed the above claim with the court, arguing that Eo.V. (the testator) is the mother of the deceased spouse of the plaintiff. The testator died in 2003, which was not known to the testator's son S.A. during his lifetime, since no one told him about it. EA.G. cannot claim the inherited property of ER.V., since they divorced in 1995, and her children BV.N. (G. Vp.) and AE.A. (GE.P.) were adopted before her death. The only heir after the death of R.V. was his son S.A., who died without accepting the inheritance. The plaintiff stated in the lawsuit that on February 06, 2021, she learned from the materials of the inheritance case that the testator had died, as the whole family thought that she was missing and wanted. For this reason, S.A. did not accept the inheritance. The plaintiff does not know how EA.G. received the 3rd death certificate of ER.V., the funeral arrangements of the latter were not carried out.

Restoration of the deadline for accepting the inheritance | recognition of the heir as having accepted the inheritance

EA.G. hid from his son S.A. information about the death of the testator. The plaintiff filed a claim to restore the deadline for accepting the inheritance (in the order of hereditary transmission) in the form of 1/5 of the apartment opened after the death of EV., who died on March 01, 2003. The representative of the defendant, Nurtai A.B., submitted to the court a written response to the claim, according to which the defendant does not object to restoring the deadline for accepting the inheritance and recognizing the heirs as having accepted the inheritance. Third person EA.G. In his response to the claim, he pointed out that the plaintiff had not provided the court with evidence indicating that S.A. did not know about his mother's death. A third person, EA.G., learned about the death of his ex-wife from his son, after which he applied to law enforcement agencies with a statement. At the police department, he was provided with photographs of the corpses of unidentified persons, from which E.R.V. was identified.. For this reason, initially in the death certificate, the last name was indicated in the column – unknown. He believes that the plaintiff missed the deadline for accepting the inheritance for disrespectful reasons. The third party notary Asabayeva M.K. has not provided a written response to the claim. The plaintiff's representatives at the court hearing, held via mobile videoconference, supported the claims on the grounds set out in the lawsuit and asked to satisfy the claim. A third person, notary Asabayeva M.K., at the hearing confirmed the arguments of the plaintiff's side that the plaintiff became aware of the death of the testator only on February 06, 2021, when reviewing the materials of the inheritance case. The representative of the third party EA.G. S.A. At a court hearing held via mobile videoconference, she requested that the claim be dismissed on the grounds set out in the review. The third parties HE.P. and GW.P. did not participate in the court session, did not respond to video calls, although they were duly notified of the time of the meeting, and therefore the court considered it possible to consider the case without their participation. In accordance with Article 8 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests. 4 According to Article 1039 of the Civil Code of the Republic of Kazakhstan, inheritance is carried out by will and (or) by law. First of all, according to the law, the testator's children receive equal shares of inheritance, as well as the testator's spouse and parents. The testator's grandchildren and their descendants inherit by right of representation (Article 1061 of the Civil Code). The inherited property after the death of ER.V. consists of 1/5 of the share of an apartment located at: Almaty city, Almaly district, M street, house 25, apartment 34. EA.G., BV.N. (now-GV.P.), AE.A. (now-HE.P.) have 1/5 share of the apartment each. The inheritance property in the form of 1/5 of the share of the apartment opened after the death of S.A. was issued a certificate of inheritance to his heirs: E.V. and minor children - EE and EE. As established in the court hearing, the only heir of the first stage after the death of E.V. was her son S.A., who died on November 27, 2020, before he could accept the inheritance that opened after the death of his mother. The joint owners of the apartment cannot claim the opened inheritance, since the marriage between ER.V. and EA.G. was dissolved in 1995, that is, before the opening of the inheritance, and the testator's children are BV.N. (GW.P.) and AE.A. (GE.P.), were adopted by GR.T. back in 1993 and 1996 (before the death of ER.V.). In accordance with Article 1072-4 of the Civil Code, if the heir legally or willed died after the discovery of the inheritance, without having had time to accept it within the time limit established by Article 1072-2 of this Code, the right to accept the share of the inheritance due to him passes to his heirs. This right of the deceased heir may be exercised by his heirs on a general basis during the remainder of the term for accepting the inheritance. Upon the expiration of the period established for accepting the inheritance, the heirs of the deceased heir may be recognized by the court as having accepted the inheritance in accordance with Article 1072-3 of this Code, if the court finds valid reasons for their omission of this period. Thus, only the heirs of the deceased ES.A., that is, his spouse EO.V. and minor children, EE and EE, can claim the inherited property opened after the death of ER.V.. According to Article 1072-3 of the Civil Code, at the request of an heir who has missed the deadline set for accepting the inheritance, the court may restore this deadline and recognize the heir as having accepted the inheritance if the heir missed this deadline for valid reasons and provided that the heir who missed the deadline set for accepting the inheritance applied to the court within six months after as the reasons for missing this deadline have disappeared. Paragraph 11 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of inheritance legislation by courts" stipulates that the court may restore the deadline and recognize the heir as having accepted the inheritance if there are the following conditions: 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 inheritance); the heir applied to the court no later than six months after the reasons for missing this period had disappeared. 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. Having examined all the circumstances of the case, the court came to the conclusion that there were a set of conditions that are the basis for restoring the term of acceptance of the inheritance to the plaintiff and recognizing her as having accepted the inheritance. It was established that the reason for missing the deadline for accepting the inheritance of S.A. was the fact that the son of the testator, S.A., was not aware of the death of his mother during his lifetime. Parents of S.A. – E.G. and R.V. they were divorced and did not live together. As follows from the explanation of the representative of a third party, er.V. abused alcohol, did not lead a healthy lifestyle, and did not have a permanent place of residence. S.A. before marrying the plaintiff, E.V. lived with his father, after marrying he moved to live with his spouse.

Restoration of the deadline for accepting the inheritance | recognition of the heir as having accepted the inheritance

 The plaintiff's arguments that she became aware of the death of the testator, er.V., only on February 06, 2021, when reviewing the materials of the inheritance case, were confirmed at a court hearing by a third person, notary Asabayeva M.K.. Starting in February 2021, the plaintiff took measures aimed at registering the inheritance that opened after the death of her husband, S.A. On July 03, 2021, the plaintiff and her daughters received a certificate of inheritance for the property that opened after the death of S.A. In July 2021, the plaintiff applied to a law firm, and a contract for the provision of legal services was concluded. In the future, measures were taken to request relevant materials for the preparation of a lawsuit in court. The lawsuit was originally filed on September 08, 6, 2021, which was returned for revision. The lawsuit was then re-filed on September 16, 2021. Taking into account the above circumstances, the court recognizes the reason for not accepting the inheritance as valid, and the rights of heirs, including minor children, UH and Uh, must be protected. In accordance with paragraphs 5 and 6 of Article 8 of the Civil Code, actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are prohibited. No one has the right to take advantage of their unscrupulous behavior. As established by the court, a third person, EA.G., and his wife currently live in this apartment. The court considers that the actions of the third party EA.G. are aimed at taking advantage of their unscrupulous behavior, as evidenced by the filing of a lawsuit against EA.V. on the recognition of ownership of property in the form of a 1/5 share (hereditary property) according to the statute of limitations. By a court decision dated November 01, 2021, EA.G.'s claim was denied. In such circumstances, the court considered the claims to be justified, the claim is subject to satisfaction. Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of the EOV to the municipal state institution "Office of the Akim of Almaty" for the restoration of the inheritance period. To restore the deadline for accepting the inheritance and recognize as accepting the inheritance that opened after the death of ERV, who died on March 01, 2003.

#Lawyer #Lawyer #Legal service #Legal advice #Defense Company #Law Firm #Civil #Criminal #Administrative #Arbitration cases disputes #Almaty #Kazakhstan

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases