Restoration of the Limitation Period in Case of Recognition of Claims by Defendants
In accordance with Article 2 of the Civil Code, citizens and legal entities acquire and exercise their civil rights, and also waive them, unless otherwise provided by legislative acts, at their own will and in their own interests. They are free to establish their rights and obligations on the basis of a contract and to determine any of its terms that do not contradict legislation.
Based on these fundamental principles of civil legislation, if other heirs who have accepted the inheritance do not object to including among the heirs a person who has missed the deadline, court decisions granting the claim do not contradict the law.
At the same time, the court is not entitled to accept the defendant’s recognition of the claim if such actions contradict the law or violate the rights, freedoms, and legitimate interests of others.
It should be noted that analysis of regional courts and judicial cases has shown that in claims for restoration of the period for accepting an inheritance, the estate usually includes immovable property (residential houses, apartments, garages, summer houses), which requires maintenance; however, courts often ignore evidence available in the case confirming the actual acceptance of the inheritance.
General Provisions
In accordance with paragraph 1 of the Regulatory Resolution, when resolving disputes in inheritance cases, courts must be guided by the legislation in force on the date of opening of the inheritance.
A new law introducing amendments or additions to the previous procedure for regulating inheritance relations shall apply to rights and obligations arising after its entry into force.
The previous review explained that from July 1, 1999, with the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part), the previously existing procedure for accepting inheritance was changed.
Under Article 542 of the Civil Code of the Kazakh SSR, which was in force before July 1, 1999, in order to acquire an inheritance, an heir had to accept it.
An heir was deemed to have accepted the inheritance when he or she actually took possession or control of the inherited property or submitted an application to the state notary office at the place where the inheritance was opened.
These actions had to be performed within six months from the date of opening of the inheritance.
With the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part) on July 1, 1999, the rules for accepting inheritance changed significantly, introducing the “presumption of acceptance of inheritance,” meaning that the heir acquired the right to the inheritance due from the moment of opening of the inheritance, unless he or she subsequently renounced it, was deprived of the right to inherit, or lost such right due to the invalidation of a testamentary disposition.
From February 3, 2007, the previous procedure for accepting inheritance was reinstated (Law dated January 12, 2007 “On Amendments and Additions to the Civil Code of the Republic of Kazakhstan”).
In some cases, courts fail to take into account that the applicable law is the one in force on the date of opening of the inheritance.
By the decision of the Mughalzhar District Court of Aktobe Region dated May 16, 2024, the claim of G.V.V. against the State Institution “Akim’s Office of the city of Kandyagash, Mughalzhar District, Aktobe Region” for restoration of the period for accepting inheritance and recognition of acceptance of inheritance was granted. The case was not reviewed on appeal.
According to the case materials, the testator died on December 13, 2000, i.e., during the period when the presumption of acceptance of inheritance applied; however, when the claimant applied to a notary, she was refused issuance of a certificate of inheritance due to missing the deadline.
Such errors are systemic; lack of knowledge of the law by some notaries leads to unjustified обращения граждан в суды, while courts fail to suppress unlawful actions of notaries, thereby contributing to further violations of citizens’ rights.
Courts should be aware that the circle of heirs is also determined by the legislation in force at the time of opening of the inheritance. Under the Civil Code of the Kazakh SSR, there were three classes of heirs; from July 1, 1999, the Civil Code of Kazakhstan established six classes; from February 3, 2007, the circle of heirs was changed again.
During the period from July 1, 1999, to February 3, 2007, the institution of hereditary transmission did not exist; from February 3, 2007, the rules of inheritance by right of representation were changed.
Thus, due to different legal regulation in different periods, courts must apply the law in force at the time of opening of the inheritance.
Jurisdiction
In accordance with the Civil Procedure Code, the following jurisdiction applies to civil cases arising from inheritance relations.
Part 3 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction for cases on:
recognition as an unworthy heir;
recognition of inheritance as escheated;
restoration of the period for accepting inheritance;
extension of the period for renouncing inheritance.
These cases are considered at the place where the inheritance was opened.
Under Article 1043 of the Civil Code, the place of opening of the inheritance is the last place of residence of the testator, and if unknown, the location of the property or its main part.
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
