The decision of the court of first instance to satisfy the claim for invalidating the donation agreement was upheld and recognized based on a correct assessment of the circumstances of the case, the norms of substantive law were applied correctly, meaning that the court of appeal had no grounds for revoking a lawful judicial act.

A. filed a lawsuit against O., the State Institution "Department of Justice of the South Kazakhstan region" (hereinafter - GU), U., private notary M., interested person Z. on the recognition of the donation agreement and its state registration as invalid. By the decision of the Abai District Court of Shymkent dated November 12, 2013, A.'s claim was satisfied. It was decided: to invalidate the donation agreement dated August 23, 2012 of an apartment at the address: South Kazakhstan region, Shymkent city, M. Street (hereinafter referred to as the disputed apartment), concluded between L. and O., notarized by M., registered in the register No. 1-2465; to invalidate the registration of the donation agreement dated August 23, 2012 for O. in the Department of Justice of the South Kazakhstan region; to collect from O. the amount of the paid state fee in the amount of 1,980 tenge. By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the South Kazakhstan Regional Court dated April 3, 2014, the court's decision was overturned.

 By the decision of the Appellate Judicial Board for Civil and administrative cases of the South Kazakhstan Regional Court dated April 3, 2014, A.'s claims were denied. By the decision of the Cassation Judicial Board of the South Kazakhstan Regional Court dated June 9, 2014, the decision of the appellate instance remained unchanged. In the petition, the plaintiff asked to cancel the judicial acts of the appellate and cassation instances, to uphold the decision of the court of first instance, indicating that his mother L. She could not donate an apartment to an outsider due to her painful condition, for which she was repeatedly hospitalized. This fact is also confirmed by the conclusion of the forensic psychiatric examination dated March 5, 2013. Moreover, he lived in the apartment with the deceased L., taking daily care of her, and lives in the disputed apartment to this day, bears the burden of maintaining the property, considers himself the legitimate heir. In the response to the petition, Notary M. requests to leave the contested judicial acts unchanged, and to dismiss the plaintiff's petition.

Response to the petition by the defendant O. not represented. Having studied and discussed the case materials and the arguments of the petition, the Supervisory judicial board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the judicial acts issued in the case, upheld the decision of the Abaysky District Court of Shymkent dated November 12, 2013 by virtue of the following. The case file established that the disputed apartment was owned by L. on the basis of the privatization agreement dated June 15, 1998, No. 781. According to the disputed notarized donation agreement dated August 23, 2012, the disputed apartment was donated to O., who on September 4, 2012, registered ownership with the justice authorities. By the decision of the Abai District Court of Shymkent dated March 11, 2013, L. was declared legally incompetent and in need of custody. By Resolution No. 997 of the Shymkent city Akimat dated January 22, 2013, Z. was appointed the guardian of the incapacitated L. According to death certificate No. 1617 dated May 6, 2013, issued by the Shymkent City Registry Office, L. died on May 1, 2013 at the age of 78.

Recognizing the donation agreement as invalid with reference to the provisions of paragraph 7 of Article 159 of the Civil Code (hereinafter referred to as the Civil Code), the court of first instance, taking into account medical documentation and the conclusion of the forensic psychiatric examination dated March 5, 2013 No. 344, concluded that L. was in a state at the time of the impugned transaction when she could not control her actions. In addition, the court of first instance indicated that the contested transaction had been made on the condition that there was a receipt from O. regarding the agreement to transfer 1/2 of the apartment to the grandson of the donor L., as well as the fact that the contract was signed not by L. herself, but by the handyman U. In overturning the court's decision and rejecting the claim, the appeals board proceeded from the conclusion of the posthumous forensic psychiatric examination No. 407 dated March 17, 2014, as well as from the fact that there were no violations by the notary of the Rules for performing notarial acts, which are the basis for canceling the donation agreement, although the plaintiff did not claim its cancellation. The cassation instance agreed with the conclusions of the appeals board. Meanwhile, the conclusions of the court of appeal and cassation instances do not correspond to the circumstances established in the case and contradict the norms of substantive and procedural law.  According to the seventh part of Article 96 of the CPC, paragraph 12 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", the expert's opinion does not have an advantage over other evidence and is not binding on the court. It should be evaluated in conjunction with other evidence. Medical documentation confirms that L. Since 2010, she has been complaining about her health, was registered with a diagnosis of chronic cerebral circulatory disorder, the consequences of acute ischemic cerebral circulatory disorder in the basin of the right middle cerebral artery, grade 3 dyscirculatory encephalopathy, arterial hypertension 3 (very high risk). Spastic left-sided hemiparesis.

Vascular dementia syndrome. Taking into account these circumstances, on March 5, 2013, the forensic psychiatric commission concluded that L. suffers from a mental illness in the form of dementia in the form of "Vascular dementia (acquired dementia)", which deprives her of the ability to understand the meaning of her actions and direct them. The appeal board's reference to the conclusion of the post-mortem forensic psychiatric examination dated March 17, 2014 is unfounded, since according to the results of its conduct, L.'s mental state at the time of the impugned transaction was not determined. Thus, the conclusions of the court of first instance on the satisfaction of the claim are based on a correct assessment of the circumstances of the case, the norms of substantive law to be applied in this case were applied correctly, which is why the court of appeal had no grounds for revoking a lawful judicial act. 

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