Waiver of Inheritance
In accordance with Article 1074 of the Civil Code, an heir has the right to waive an inheritance within six months from the date the inheritance is opened. Where there are valid reasons, this period may be extended by the court, but by no more than two months.
An heir loses the right to waive the inheritance upon expiration of the period granted for this purpose. The heir also loses this right before the expiration of the specified period if he or she has actually taken possession of the inherited property, disposed of it, or applied for documents certifying his or her rights to such property.
It was previously noted in the review that persons who had missed the deadline for accepting an inheritance, upon the recommendation of notaries, apply to the court for an extension of the period for waiving the inheritance, and that such claims are, with rare exceptions, unjustifiably granted by the courts.
Such practice continues to persist in the courts of the Republic.
By the decision of the Taraz City Court dated June 6, 2024, the claim of A.D. against A.N. and A.G. for an extension of the period for waiving the inheritance following the death of T.Z., who died on June 12, 2022, was granted.
It follows from the content of the decision that, following the death of T.Z., an inheritance consisting of a residential house and a land plot was opened. By the resolution of Notary L. dated February 22, 2024, the claimant was refused acceptance of the application to waive the inheritance following the death of his mother due to the expiration of the prescribed period.
The court took into account that the claimant, A.D., is a military serviceman, resides in the city of Semey, and his military unit is located outside the city, as a result of which he was unable to apply to a notary within the statutory period for waiving the inheritance. The claimant does not claim the inherited property and intends to waive his share of the inheritance in favor of his brother. The inherited property has not been declared escheat and has not passed into the ownership of other persons.
Meanwhile, the court should have been guided by Article 1079 of the Civil Code, pursuant to which the share of the inheritance due to the claimant should have passed to another heir who had actually accepted the inheritance.
General Provisions
In accordance with the requirements of paragraph 1 of the Regulatory Resolution, when resolving inheritance disputes, courts must be guided by the legislation in force on the date the inheritance is opened.
A new law introducing any amendments or additions to the previous procedure for regulating inheritance relations applies to those rights and obligations that arise after its entry into force.
The previous review explained that, from July 1, 1999, namely from the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part), the previously existing procedure for accepting an inheritance was changed.
Under Article 542 of the Civil Code of the Kazakh SSR, which was in force until July 1, 1999, an heir was required to accept the inheritance in order to acquire it.
An heir was deemed to have accepted the inheritance when he or she had actually taken possession or control of the inherited property or had filed an application for acceptance of the inheritance with the state notary office at the place where the inheritance was opened.
These actions had to be performed within six months from the date the inheritance was opened.
With the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part) on July 1, 1999, the rules governing the acceptance of inheritance changed substantially, and the “presumption of acceptance of inheritance” came into effect. That is, an heir acquired the right to the inheritance due to him or her from the time the inheritance was opened, provided that the heir did not subsequently waive the inheritance, was not deprived of the right to inherit, and did not lose the right to inherit as a result of the invalidation of a testamentary disposition appointing him or her as an heir.
From February 3, 2007, the previous procedure for accepting an inheritance came back into force pursuant to the Law dated January 12, 2007, “On Introducing Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General and Special Parts).”
In certain cases, courts fail to take into account that, when considering a case, they must be guided by the legislation in force on the date the inheritance was opened.
By the decision of the Mugalzhar District Court of the Aktobe Region dated May 16, 2024, the claim of G.V.V. against the State Institution “Office of the Akim of Kandyagash City of the Mugalzhar District of the Aktobe Region” for restoration of the period for accepting the inheritance and recognition of the claimant as having accepted the inheritance was granted. The case was not considered on appeal.
The circumstances of the case show that the deceased, G.V.N., died on December 13, 2000, that is, during the period when the presumption of acceptance of inheritance was in effect. However, when the claimant applied to Notary K. of the Aktobe Notarial District for a certificate of the right to inheritance, she was refused due to the expiration of the period for accepting the inheritance.
Such errors are systematic in nature. Ignorance of the law by certain notaries results in citizens unjustifiably applying to the courts, which fail to put an end to the unlawful actions of notaries and thereby contribute to the further violation of citizens’ rights.
Courts should be aware that the circle of heirs is also determined under the legislation in force at the time the inheritance is opened. During the period when the Civil Code of the Kazakh SSR was in force, there were only three classes of heirs. From July 1, 1999, the Civil Code of the Republic of Kazakhstan established six classes of heirs by law, and from February 3, 2007, the circle of heirs was changed once again.
During the period from July 1, 1999, to February 3, 2007, the Civil Code did not contain the institution of hereditary transmission, while from February 3, 2007, the rules governing inheritance by the right of representation were amended.
Thus, due to the different legal regulation of the same issue during different periods, courts must apply the rules of law that were in force at the time the inheritance was opened.
Jurisdiction
In accordance with the Civil Procedure Code, the following rules of jurisdiction apply to civil cases arising from inheritance legal relations.
Part 3 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over cases involving claims for recognition of a person as an unworthy heir, recognition of an inheritance as escheat property, restoration of the time limit for accepting an inheritance, and extension of the time limit for waiving an inheritance.
Cases concerning the above-mentioned claims shall be heard at the place where the inheritance is opened.
The previous review explained the issues of jurisdiction over claims for restoration of the time limit for accepting an inheritance due to a conflict between paragraph 12 of the Regulatory Resolution and Part 3 of Article 31 of the Civil Procedure Code. Until the relevant amendments are made to the Regulatory Resolution, courts are recommended to be guided by the provisions of the Civil Procedure Code; that is, claims for restoration of the time limit for accepting an inheritance or extension of the time limit for waiving an inheritance must be filed with the court at the place where the inheritance is opened.
Under Article 1043 of the Civil Code, the place where an inheritance is opened is the decedent's last place of residence, and if it is unknown, the location of the property or its principal part.
By the ruling of the Aksu District Court of the Zhetisu Region dated October 23, 2024, the claim of A.T. against O. and others for restoration of the time limit for accepting an inheritance was unjustifiably returned on the grounds that the case did not fall within the jurisdiction of that court. As the basis for returning the claim, the court stated that the deceased, A.M., had been registered in the city of Taldykorgan.
By the ruling of the Judicial Chamber for Civil Cases of the Zhetisu Regional Court dated December 10, 2024, the ruling of the court of first instance was set aside, and the claim was remitted to the same court.
According to information from the Information Exchange System of Law Enforcement and Special Authorities, the deceased, A.M., had been registered during his lifetime in the village of Zhansugurov, Aksu District. Similar information regarding the decedent's last place of residence was provided by the police authorities. In addition, a residential property at the above-mentioned address was registered in A.M.'s ownership.
Part 2 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over claims of the decedent's creditors against heirs and the executor of the will (trustee of the inheritance), at the location of the inherited property, in accordance with the rules established by Part 1 of this Article, that is, in accordance with the rules applicable to immovable property.
If the inherited property includes movable property, such as bank deposits, a share in the authorized capital of a business partnership, cooperative shares, etc., the general rule of jurisdiction applies to creditors' claims, namely, at the defendant's place of residence or location.
Disputes concerning the protection of the inheritance rights of minor children shall, pursuant to Part 3 of Article 27 of the Civil Procedure Code, be heard by specialized inter-district juvenile courts.
In some cases, courts unjustifiably transfer cases to specialized juvenile courts on jurisdictional grounds.
By the ruling of the Kyzylorda City Court dated October 2, 2024, the claim of I. against A. seeking recognition of an application for waiver of inheritance as unlawful and invalidation of a certificate of the right to inheritance was transferred on jurisdictional grounds to the Specialized Inter-District Juvenile Court of the Kyzylorda Region, on the basis that the defendant had alimony arrears to the claimant for the maintenance of minor children.
The Appellate Chamber disagreed with the conclusion of the court of first instance, set aside the ruling, and remitted the case to the same court for consideration on the merits, noting that the claim had not been filed in the interests of minors, who were not heirs of the decedent.
The general rule of jurisdiction, namely jurisdiction at the defendant's place of residence or location, applies to all other cases arising from inheritance rights, including claims for invalidation of a will or a certificate of the right to inheritance, except for certificates concerning rights to immovable property, etc.
By the ruling of the Judicial Chamber for Civil Cases of the North Kazakhstan Regional Court dated February 13, 2025, the ruling of the Gabit Musrepov District Court dated January 16, 2025, by which the claim of an LLP against S. and F. for invalidation of a certificate of the right to inheritance by law had been returned, was set aside.
In returning the claim, the court of first instance proceeded on the basis that the claimant was a legal entity, defendant S. was registered as an individual entrepreneur (hereinafter referred to as an IE), and the dispute concerned the shares of participants in common shared ownership in a peasant farm (hereinafter referred to as a PF), which indicated the existence of a corporate dispute falling within the jurisdiction of the Specialized Inter-District Economic Court (hereinafter referred to as the SIDEC).
The Judicial Chamber found these conclusions unfounded, noting that defendant S. was neither a participant in the LLP or the PF, nor the head or former head of those organizations. Accordingly, the court's conclusion that the dispute was corporate contradicted the provisions of Article 27 of the Civil Procedure Code. S.'s status as an IE is irrelevant for determining whether the case falls within the jurisdiction of the SIDEC, as the LLP's application was related to challenging a title document held by the defendant, who is an individual.
Under Article 307 of the Civil Procedure Code, an application in cases concerning the establishment of a fact having legal significance shall be filed with the court at the applicant's place of residence, except for applications seeking to establish the existence of documents confirming possession, use and/or disposal of immovable property, which shall be filed with the court at the location of the immovable property.
By the judgment of the Taraz City Court of the Zhambyl Region dated December 6, 2024, the application of L.T. to establish the legal fact of the place where the inheritance was opened was granted. The place where the inheritance was opened following the death of L.S., who died on October 24, 1999, was determined to be the city of Taraz.
The basis for applying to the court was the resolution of Notary S. dated October 11, 2024, by which the applicant was refused the issuance of a certificate of the right to inheritance following the death of her spouse and was advised to apply to the court to determine the place where the inheritance was opened, since her spouse had not been registered at the location of the inherited property, namely an apartment in the city of Taraz, and had been deregistered from his previous place of registration.
In this case, the notary unjustifiably refused to issue the certificate of the right to inheritance because, under Article 1043 of the Civil Code, the place where an inheritance is opened is the decedent's last place of residence, and if it is unknown, the location of the property or its principal part. Accordingly, the court had no legal grounds for granting the application.
A., residing in the city of Almaty, applied to the court with an application seeking to establish two facts: her kinship with her grandmother, U., and her acceptance of the inheritance opened following the death of U. in the territory of the city of Khromtau, Aktobe Region.
By the ruling of the Khromtau District Court dated August 2, 2024, A.'s application was returned on the grounds of lack of jurisdiction, with reference to Article 307 of the Civil Procedure Code.
The appellate court, referring to the provisions of Article 31 of the Civil Procedure Code, set aside the ruling of the court of first instance, noting that the decedent had immovable property.
Subsequently, by the ruling of the Khromtau District Court dated October 23, 2024, the proceedings concerning the claim to establish the fact of acceptance of the inheritance were left without consideration due to the withdrawal of the application, pursuant to subparagraph 8) of Article 279 of the Civil Procedure Code.
By the court's judgment dated October 28, 2024, A.'s application to establish the fact of kinship was granted.
The analysis of the Aktobe Regional Court raised the question of whether it was lawful for the above case to be considered territorially in the Aktobe Region, since, under Article 307 of the Civil Procedure Code, an application in cases concerning the establishment of a fact having legal significance must be filed with the court at the applicant's place of residence. An exception applies to applications seeking to establish the existence of documents confirming possession, use and/or disposal of immovable property, which must be filed with the court at the location of the immovable property.
In this case, the position of the appellate court appears to be correct, since the original application required consideration of the rule of exclusive jurisdiction established by Article 31 of the Civil Procedure Code, namely, the establishment of the fact of acceptance of an inheritance consisting of immovable property.
Regulatory and Legal Framework
The regulatory legal acts governing these legal relations and subject to application when considering cases of the category under analysis include:
- The Constitution of the Republic of Kazakhstan;
- The Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002;
- The Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993, and the Protocol thereto of March 28, 1997;
- The Civil Code of the Kazakh SSR (hereinafter referred to as the Civil Code of the Kazakh SSR);
- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan or the Civil Code);
- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC);
- The Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
- The Law of the Republic of Kazakhstan “On Notaries”;
- Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the Supreme Court of the Republic of Kazakhstan) dated June 29, 1999, “On Certain Issues of the Application by Courts of Inheritance Legislation” (hereinafter referred to as the Regulatory Resolution);
- Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated June 28, 2022, “On Judicial Practice in Cases Concerning the Establishment of Facts Having Legal Significance”;
- The Rules for the Performance of Notarial Acts by Notaries, approved by Order No. 31 of the Minister of Justice of the Republic of Kazakhstan dated January 31, 2012.
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