DISPUTES OVER INHERITANCE LAW

             Restoration of the deadline for accepting an inheritance, extension of the deadline for refusing to accept an inheritance

             As mentioned above, one of the most common categories of civil cases in inheritance disputes is related to disputes about restoring the deadline for accepting an inheritance and recognizing the heir as having accepted the inheritance.

In resolving such disputes, as well as others, the courts should be guided by the legislation in force on the day of the opening of the inheritance. Due to the amendments and additions made to the Civil Code, in particular to the section "Inheritance Law", it is necessary to pay attention to the legislation in force on the day of the opening of the inheritance.

In accordance with the provisions of Article 542 of the Civil Code of the Kazakh SSR, approved by the Law of the Kazakh SSR dated December 28, 1963, the heir must accept the inheritance within six months from the date of the opening of the inheritance.

This provision of the law was in force until the adoption of the Civil Code of the Republic of Kazakhstan (Special Part), which was put into effect by the Law of the Republic of Kazakhstan dated July 1, 1999. According to the requirements of Article 1072 of the Civil Code of the Republic of Kazakhstan, the heir acquired the right to the inheritance due to him or part of it (share) from the time of the opening of the inheritance, provided that he did not renounce the inheritance, was not deprived of the right to inherit, and did not lose the right to inherit as a result of invalidation of the testamentary disposition appointing him heir.

As can be seen from the text of the law, the restriction in the form of a six-month period for accepting an inheritance has been lifted. The Law of the Republic of Kazakhstan dated January 12, 2007 No. 225-111 "On Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General and Special parts) re-introduced a restriction in the form of a six-month period for accepting inheritance.

As already mentioned in the summary of the analyzed category of disputes for 2014, in practice, there are often cases when heirs do not promptly apply to a notary within the six-month period provided for by law with an application for acceptance of inheritance or for the issuance of a certificate of inheritance under the law or by will.

Often, the appeal takes place after the six-month deadline established by law. In turn, notaries, without clarifying the most important issues, for example, about the actual acceptance of the inheritance, provide explanations about applying to the court with a statement of claim for restoring the deadline for accepting the inheritance.

As a result, the heirs who actually accepted the inheritance apply to the court with claims, increasing the number of cases pending in court. In practice, there are cases when judges, at the stage of accepting a claim for court proceedings, see the existence of grounds for refusing to accept an application for restoring the deadline for accepting an inheritance that opened during the period of the Civil Code of the Republic of Kazakhstan dated July 1, 1999.

A number of such examples were given during the 2014 synthesis. When studying this category of cases in 2015, it was again established that the statement of claim was refused on the grounds of paragraph 1, part 1, Article 153 of the CPC due to the fact that such a claim is not subject to consideration and resolution in civil proceedings.

Thus, by the ruling of the judge of Pavlodar city dated January 26, 2015, it was refused to accept the claim of Nikolaenko A.D. for the restoration of the deadline for accepting the inheritance due to its opening on 05/03/2005, that is, during the period of validity of the presumption of acceptance of the inheritance. However, it should be noted that this example took place before the generalization for 2014 and, in fact, is an isolated case.

As already mentioned in the summary for 2014, this practice seems to be incorrect, since the law, in general, provides for the consideration of a claim for restoring the deadline for accepting inheritance. Such a claim must be accepted by the court and considered with a decision to dismiss.

According to the disposition of Article 1072-3 of the Civil Code of the Republic of Kazakhstan, at the request of the heir who missed the deadline set for accepting the inheritance, the court may restore this period for good reasons. In practice, in the statements of claim, the heirs indicate good reasons for ignorance of the requirements of the law.

However, it is well known that ignorance of the law cannot be attributed to valid reasons. The adopted law is published in the mass media, therefore it is available to every citizen. It is necessary to draw the judges' attention again to the fact that if the actual acceptance of the inheritance is proven and the validity of missing the deadline for accepting the inheritance is not proven, the courts should explain to the plaintiffs about the need to file a claim to establish the fact of acceptance of the inheritance.

The deadline for accepting the inheritance is restored, as indicated above, only if there is a valid reason for its omission. At the same time, while satisfying the claims of the applicants, not all courts find out why the plaintiff missed the deadline for accepting the inheritance, and do not justify the validity of the reason for missing the deadline.

Thus, in the civil case No. 2-9456/2015, considered on May 19, 2015 by the district court No. 2 of the Kazybekbiysky district of Karaganda, the claims of S. Dalabayeva against JSC "Unified Accumulative Pension Fund" for restoring the deadline for accepting inheritance were satisfied. It follows from the circumstances of the dispute that the deadline for accepting the inheritance was missed by the applicant due to ignorance of the law. However, such a reason cannot be considered valid for the above reasons.

The court did not explain the reasons why it restored the deadline for accepting the inheritance.

Moreover, the claim is directed to the defendant JSC "Unified Accumulative Pension Fund", which is incorrect, since such claims must be submitted to other heirs, and in their absence to the local executive body.

A study of the statement of claim in this case established that the omission of the deadline for accepting the inheritance was caused by the presence of inaccuracies in the records of the applicant's and testator's civil status records, whereas in the decision the court referred to ignorance of the law. At the same time, the statement does not contain data on the time when valid reasons arose and references to when valid reasons disappeared.

In this case, it should be noted again that the plaintiff in the statement of claim for the restoration of the deadline for accepting the inheritance must indicate valid reasons, when they arose and when they disappeared. In accordance with the requirements of subparagraph 5 of part 2 of Article 150 of the Civil Procedure Code of the Republic of Kazakhstan, this is a circumstance that must be indicated in the statement of claim. Some applicants attribute these circumstances to evidence, and the courts do not pay due attention to this circumstance.

This position is erroneous, since the legislator, in the provisions of Article 1072-3 of the Civil Code, indicated that at the request of an heir who 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, went to court within six months after the reasons for missing this deadline disappeared.

Similar shortcomings were found in case No.2-12212/15, considered on October 20, 2015 by the Almaty District Court of Astana. According to Articles 1072-3 of the Civil Code, at the request of an heir who has missed the deadline set for accepting an inheritance, the court may restore this period and recognize the heir as having accepted the inheritance.

It follows from this that, without fail, when restoring the deadline for accepting the inheritance, it is necessary to indicate the recognition of the heir as having accepted the inheritance. However, some courts still do not indicate this in their decisions.

The two examples above clearly illustrate such shortcomings, the last of which took place after the 2014 summary, which also highlighted the need to address such issues when considering cases of this category.  

Regulatory framework

When considering civil cases of the same category, the courts were guided by the following rules of law:

-The Constitution of the Republic of Kazakhstan - the Civil Code of the Republic of Kazakhstan dated 07/01/1999 (Special Part) as amended on 01/12/2007, which entered into force on the date of their publication – February 3, 2007.

- The Civil Procedure Code of the Republic of Kazakhstan dated July 13, 1999.

- The Tax Code of the Republic of Kazakhstan. -The Law of the Republic of Kazakhstan "On Notary" dated 07/14/1997.

-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of inheritance legislation by courts" No. 5 dated June 29, 2009 and Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 13 "On Judicial Practice in cases of establishing facts of legal significance" dated June 28, 2002.

It should be noted that since 03.02.2007, i.e. after the enactment of the Law of the Republic of Kazakhstan "On Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General and Special parts) dated 12.01.2007, the norms of the Civil Code of the Republic of Kazakhstan with amendments and additions apply to inheritance.

These normative legal acts regulate important issues of inheritance in detail, namely, they include norms on general provisions on inheritance, inheritance by will, inheritance by law and the acquisition of inheritance.

 

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