Creditors’ Claims for Compulsory Registration of Property Forming Part of an Estate

The previous review explained that, pursuant to paragraph 2 of Article 1072-1 of the Civil Code, an heir is deemed to have accepted an inheritance if the heir has taken actions evidencing the actual acceptance of the inheritance.

As a rule, heirs actually accept the inheritance but fail to take measures to formalize and register it in accordance with the procedure established by law.

In such cases, pursuant to the second paragraph of Article 1081 of the Civil Code, creditors of the deceased are entitled to demand compulsory registration of the inherited property.

The present review demonstrated that courts of first instance continue to incorrectly apply the relevant legal provisions.

JSC “Bereke Bank” filed a claim with the court seeking to establish the fact of acceptance of the inheritance and to oblige the defendants to register ownership of the pledged property.

By the judgment of the Nauryzbay District Court of Almaty dated 2 December 2024, the claim was dismissed.

The court based its refusal on the fact that the subject matter of the dispute was pledged property belonging not to the borrower and guarantors, but to K.V.P., a proprietary guarantor, who was not a party to the secured obligation and therefore had not acquired the rights and obligations of either the lender (creditor) or the borrower (debtor).

By the ruling of the Civil Cases Panel of the Almaty City Court dated 27 February 2025, the judgment was overturned insofar as it dismissed the claim seeking to oblige K.V.V. to take actions to register ownership of the immovable property, and a new judgment was rendered granting the claim.

The appellate court established that the pledgor, K.V.P., died on 22 December 2016.

The heirs were his wife, K.E., who renounced the inheritance in accordance with the procedure established by law by submitting a corresponding application to the notary, and the second heir of the deceased pledgor, his son, defendant K.V.V., who accepted the inheritance by submitting an application for acceptance of the inheritance to the notary but avoided state registration of the immovable property.

The conclusions of the appellate court are correct, since the bank, being a creditor and pledgee, is entitled to satisfy its claims from the value of the pledged property.

On similar grounds, the following judgments were overturned: the judgment of the Satpayev City Court of the Ulytau Region dated 5 January 2025 in the claim of JSC “Kaspi Bank” against Z. and M. seeking to oblige them to register the apartment in their name; and the judgment of the Talgar District Court of the Almaty Region dated 12 March 2024 in the claim of JSC “ForteBank” against E. and T. seeking recognition of them as heirs who had accepted the inheritance and compulsory registration of the property forming part of the estate.

Thus, the obligations of a deceased person who acted as a proprietary guarantor do not terminate upon his or her death and pass to the heirs.

General Provisions

Pursuant to paragraph 1 of the Regulatory Resolution, when adjudicating inheritance disputes, courts shall be guided by the legislation in force as of the date of the opening of the inheritance.

A new law introducing any amendments or additions to the previously applicable procedure for regulating inheritance relations shall apply to those rights and obligations arising after its entry into force.

The previous review explained that, as of 1 July 1999, that is, upon the entry into force of the Special Part of the Civil Code of the Republic of Kazakhstan, the previously existing procedure for acceptance of an inheritance was changed.

Pursuant to Article 542 of the Civil Code of the Kazakh SSR, which was in force until 1 July 1999, in order to acquire an inheritance, an heir was required to accept it.

An heir was deemed to have accepted the inheritance when he or she had actually entered into possession or management of the inherited property or when he or she had submitted an application for acceptance of the inheritance to the state notary office at the place where the inheritance was opened.

Such actions had to be performed within six months from the date of the opening of the inheritance.

Upon the entry into force of the Special Part of the Civil Code of the Republic of Kazakhstan on 1 July 1999, the rules governing acceptance of an inheritance changed substantially. A “presumption of acceptance of inheritance” was introduced, meaning that an heir acquired the right to the inheritance due to him or her from the time the inheritance was opened, unless the heir subsequently renounced the inheritance, was deprived of the right to inherit, or lost the right to inherit as a result of the invalidation of the testamentary disposition appointing him or her as an heir.

As of 3 February 2007, the previous procedure for acceptance of an inheritance was reinstated by the Law “On Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General and Special Parts)” dated 12 January 2007.

In certain cases, courts fail to take into account that, when considering a case, they must be guided by the legislation in force as of the date the inheritance was opened.

By the judgment of the Mugalzhar District Court of the Aktobe Region dated 16 May 2024, the claim of G.V.V. against the State Institution “Office of the Akim of Kandyagash, Mugalzhar District, Aktobe Region” seeking restoration of the time limit for acceptance of the inheritance and recognition of G.V.V. as having accepted the inheritance was granted. The case was not considered on appeal.

According to the circumstances of the case, the deceased G.V.N. died on 13 December 2000, that is, during the period when the presumption of acceptance of inheritance was in force. However, when the claimant applied to notary K. of the Aktobe Notarial District for a certificate of inheritance, the claimant was refused on the ground that the time limit for acceptance of the inheritance had expired.

Such errors are systematic. The lack of knowledge of the law by certain notaries leads to unjustified applications by citizens to the courts, which fail to prevent unlawful actions by notaries and thereby contribute to further violations 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 was opened. Under the Civil Code of the Kazakh SSR, only three orders of heirs existed. From 1 July 1999, the Civil Code of the Republic of Kazakhstan established six orders of heirs by law, while from 3 February 2007, the circle of heirs was changed again.

During the period from 1 July 1999 to 3 February 2007, the Civil Code did not contain the institution of hereditary transmission. From 3 February 2007, the rules governing inheritance by right of representation were changed.

Thus, due to the different legal regulation of the same issue during different periods, courts must apply the legal provisions in force at the time the inheritance was opened.

Jurisdiction

Under the Civil Procedure Code, the following rules of jurisdiction apply to civil cases arising from inheritance relations.

Part 3 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over claims seeking recognition of a person as an unworthy heir, recognition of an inheritance as escheated, restoration of the time limit for acceptance of an inheritance, and extension of the time limit for renunciation of an inheritance.

Cases concerning the above claims are considered at the place where the inheritance was opened.

The previous review addressed issues of jurisdiction over claims for restoration of the time limit for acceptance of 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 advised to follow the provisions of the Civil Procedure Code, meaning that claims for restoration of the time limit for acceptance of an inheritance or extension of the time limit for renunciation of an inheritance should be filed with the court at the place where the inheritance was opened.

Pursuant to Article 1043 of the Civil Code, the place where an inheritance is opened is the deceased’s last place of residence, or, if that place is unknown, the location of the property or its principal part.

By the ruling of the Aksu District Court of the Zhetisu Region dated 23 October 2024, the claim of A.T. against O. and others seeking restoration of the time limit for acceptance of an inheritance was unjustifiably returned on the ground that the case was outside the jurisdiction of that court. The court stated that the deceased A.M. had been registered in the city of Taldykorgan.

By the ruling of the Civil Cases Panel of the Court of the Zhetisu Region dated 10 December 2024, the ruling of the court of first instance was overturned and the claim was remitted to the same court.

According to information from the Information Exchange System of Law Enforcement and Special Bodies (IES LESB), during his lifetime A.M. had been registered in the village of Zhansugurov, Aksu District. Similar information concerning the deceased’s last place of residence was provided by the police authorities. In addition, a residential building at the above address was registered as being owned by A.M.

Part 2 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over claims brought by creditors of a deceased person against heirs and the executor of a will (trust manager of the estate) at the location of the inherited property, in accordance with the rules established by Part 1 of that Article, that is, in accordance with the rules applicable to immovable property.

If the inherited property includes movable property (bank deposits, an interest in the charter capital of a business partnership, cooperative shares, etc.), the general rule of jurisdiction applies to creditors’ claims, namely, jurisdiction at the defendant’s place of residence.

Disputes concerning the protection of the inheritance rights of minor children are considered by specialized inter-district juvenile courts pursuant to Part 3 of Article 27 of the Civil Procedure Code.

In certain cases, courts unjustifiably transfer cases to specialized juvenile courts.

By the ruling of the Kyzylorda City Court dated 2 October 2024, the claim of I. against A. seeking recognition of an application for renunciation of an inheritance as unlawful and invalidation of a certificate of inheritance was transferred to the Specialized Inter-District Juvenile Court of the Kyzylorda Region on the ground that the defendant had outstanding alimony debt to the claimant for the maintenance of minor children.

The appellate panel disagreed with the conclusion of the court of first instance and overturned the ruling, remitting the case to the same court for consideration on the merits. The appellate panel held that the claim had not been filed in the interests of minors, who were not heirs of the deceased.

The general rule of jurisdiction, namely jurisdiction at the defendant’s place of residence, applies to all other cases arising from inheritance rights, including claims for invalidation of a will or a certificate of inheritance, except for certificates concerning rights to immovable property, and other similar claims.

By the ruling of the Civil Cases Panel of the North Kazakhstan Regional Court dated 13 February 2025, the ruling of the Gabit Musrepov District Court dated 16 January 2025 was overturned. The latter had returned the claim of an LLP against S. and F. seeking invalidation of a certificate of inheritance by law.

In returning the claim, the court of first instance proceeded from the fact that the claimant was a legal entity, defendant S. was registered as an individual entrepreneur (hereinafter, an “IE”), and the dispute concerned the share of participants in common shared ownership in a peasant farm (hereinafter, a “PF”), which indicated the existence of a corporate dispute falling within the jurisdiction of the Specialized Inter-District Economic Court (hereinafter, the “SIEC”).

The appellate panel found these conclusions unfounded, noting that S. was neither a participant in the LLP or PF nor the head or former head of the relevant organizations. Accordingly, the court’s conclusion that the dispute was corporate in nature was inconsistent with Article 27 of the Civil Procedure Code. S.’s status as an IE was irrelevant to determining jurisdiction over the case by the SIEC, since the LLP’s claim concerned a challenge to the legal title document of the defendant, who was a natural person.

Pursuant to 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 concerning the establishment of facts relating to documents confirming ownership, 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 6 December 2024, the application of L.T. seeking establishment of the legally significant fact concerning the place where the inheritance was opened was granted. The city of Taraz was established as the place where the inheritance was opened following the death of L.S., who died on 24 October 1999.

The basis for applying to the court was the ruling of notary S. dated 11 October 2024, by which the applicant was refused a certificate of inheritance following the death of her spouse and advised to apply to the court to determine the place where the inheritance was opened because, although the inherited property was an apartment located in Taraz, the spouse had not been registered there and had been deregistered from his place of registration.

In this case, the notary unjustifiably refused to issue a certificate of inheritance, since under Article 1043 of the Civil Code the place where the inheritance is opened is the deceased’s last place of residence, or, if that place is unknown, the location of the property or its principal part. Accordingly, there were no legal grounds for the court to grant the application.

A., residing in Almaty, applied to the court seeking to establish two facts: her relationship to her grandmother U. and her acceptance of the inheritance opened following U.’s death in the territory of Khromtau, Aktobe Region.

By the ruling of the Khromtau District Court dated 2 August 2024, A.’s application was returned on the ground of lack of jurisdiction, with reference to Article 307 of the Civil Procedure Code.

Referring to the provisions of Article 31 of the Civil Procedure Code, the appellate court overturned the ruling of the court of first instance, indicating that the deceased had owned immovable property.

Subsequently, by the ruling of the Khromtau District Court dated 23 October 2024, the proceedings in the part concerning the claim for establishment of 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 judgment of 28 October 2024, A.’s application seeking to establish the fact of a family relationship was granted.

The analysis of the Aktobe Regional Court raised the issue of whether the above case was lawfully considered within the territorial jurisdiction of the Aktobe Region, since, pursuant to 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. An exception is made for applications seeking to establish the fact of the existence of documents confirming ownership, use and/or disposal of immovable property, which shall 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 rule of exclusive jurisdiction established by Article 31 of the Civil Procedure Code should have been taken into account in the initial application, namely, the establishment of the fact of acceptance of an inheritance consisting of immovable property.

Regulatory Legal Framework

The regulatory legal acts governing these legal relations and subject to application when considering cases of the category under review include:

• The Constitution of the Republic of Kazakhstan;
• The Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated 7 October 2002;
• The Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated 22 January 1993 and the Protocol thereto dated 28 March 1997;
• The Civil Code of the Kazakh SSR (hereinafter, the “Civil Code of the Kazakh SSR”);
• The Civil Code of the Republic of Kazakhstan (hereinafter, the “Civil Code of the Republic of Kazakhstan” or the “Civil Code”);
• The Civil Procedure Code of the Republic of Kazakhstan (hereinafter, the “Civil Procedure Code”);
• The Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
• The Law of the Republic of Kazakhstan “On Notariat”;
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan (hereinafter, the “Supreme Court of the Republic of Kazakhstan”) dated 29 June 1999 “On Certain Issues of Application by Courts of Legislation on Inheritance” (hereinafter, the “Regulatory Resolution”);
• Regulatory Resolution No. 13 of the Supreme Court of the Republic of Kazakhstan dated 28 June 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 31 January 2012.

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