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.
P. filed a lawsuit with the court against K., a third person who does not declare independent claims on the subject of the dispute – the private notary of the Pavlodar region notary district, L., the State Institution "Department of Justice of the city of Pavlodar" to restore the deadline for accepting the inheritance and recognizing the inheritance as accepted, partially invalidating the certificates dated February 21 and March 05, 2014 on the right to inheritance by law. By the decision of the Pavlodar City Court of January 20, 2016, the claim was satisfied: the deadline for accepting the inheritance was restored, recognizing it as accepting the inheritance left after the death of T.'s grandmother, who died on February 08, 2013; the certificates dated February 21 and March 05, 2014 on the right to inheritance under the law were partially invalidated. By a resolution of the judicial board for Civil Cases of the Pavlodar Regional Court dated June 07, 2016, the court's decision was overturned and a new decision was made to dismiss the claim. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. The case materials established that on February 08, 2013, T., the mother of the defendant, K., and the grandmother of the plaintiff, P., died on her father's side. After their death, an inheritance was opened in the form of apartment No. 28 at No. 13 Aimanova Street in the city of Pavlodar and a land plot with an area of 0.08 hectares in the village of Michurino, Pavlodar region. On February 21, 2014, the notary of the Pavlodar region notary district, L., issued T. a certificate of inheritance under the law for an apartment, and on March 05, 2014, a certificate of inheritance under the law (additional) for a land plot.
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 court of first instance justified the satisfaction of the claim by the fact that the defendant, acting in bad faith, violated the legally protected rights and interests of P. to inherit according to the law, since she did not inform the notary about the presence of other heirs of the first priority. In overturning this decision, the court of appeal pointed out that observing the six-month deadline for applying to court was a prerequisite for restoring the deadline for accepting the inheritance, but P. was not provided with valid reasons for missing this deadline. However, these conclusions do not correspond to the circumstances of the case and the requirements of the law. In accordance with paragraph 2 of Article 1061 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the testator's grandchildren and their descendants inherit by right of representation. By virtue of paragraph 1 of Article 1067 of the Civil Code, the share of an heir legally deceased before the opening of the inheritance or simultaneously with the testator passes by right of representation to his respective descendants in the cases provided for in paragraph 2 of Article 1061, paragraph 2 of Article 1062 and paragraph 2 of Article 1063 of this Code, and is divided equally between them. It follows from this that P., being a grandson, is legally the heir to his grandmother T.'s property by right of representation. His share in this inheritance (provided there are no other heirs of the first order) should be equal to the share of his deceased father's sister, K. In accordance with Article 1072-3 of the Civil Code, at the request of an heir who has missed the deadline set for accepting the inheritance (Article 1072-2 of this Code), 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 will be held within six months after the reasons for missing this deadline have disappeared. When recognizing an heir as having accepted an inheritance, the court determines the shares of all heirs in the inherited property and, if necessary, measures to protect the rights of the new heir to receive his share of the inheritance. Previously issued certificates of inheritance rights are declared invalid by the court.
Paragraph 11 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 29, 2009 No. 5 "On certain issues of the application of inheritance legislation by courts" stipulates that, considering the application of the heir to restore the deadline for accepting inheritance in accordance with Article 1072-3 of the Civil Code, the court may restore the deadline 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 deadline 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 128 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. It follows from the above that although, according to the law, skipping a six-month period is an obstacle to entering into the right of inheritance, however, this is only a formal basis. The same law provides for the possibility of restoring this period under certain conditions. Therefore, when deciding on the restoration of time, the courts must objectively and comprehensively examine all the circumstances of his omission, taking into account the individuality of these circumstances for each specific case. The case materials reliably established the fact of K.'s concealment. when registering an inheritance with a notary, there is no information about the presence of other heirs of the first priority. The court of first instance objectively established the time period and circumstances of receiving information about this by plaintiff P., namely, that defendant K. misled him by informing him that the testator had left a will in her favor for the inherited property. Objectively recognizing these reasons as valid, the court made a fair decision to satisfy the claim. The applicant rents a house, became an orphan at the age of ten after the death of his parents, and does not own a home. It follows from the explanations of defendant B.'s representative that defendant K. has her own home, and her daughter lives in the disputed home. However, these facts were not taken into account when the city court's decision was overturned by the appellate instance. In such circumstances, the judicial board of the Supreme Court indicated that the conclusions of the court of first instance were legitimate, and the substantive law norms had been applied correctly. Consequently, the court of appeal had no grounds to overturn the decision and dismiss P.'s claim.
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