Recognition as an Heir Who Has Accepted the Inheritance and Inclusion of the Heir in the Certificate of the Right to Inherit

On appeal, the judgment of the Aktobe City Court dated 11 March 2024 in the claim filed by P. against K.I. and K.R. for recognition as an heir who has accepted the inheritance and inclusion of the heir in the certificate of the right to inherit was amended.

The court of first instance ordered that P. be included as an heir, on an equal basis with K.I. and K.R., in the certificates of the right to inherit by law.

The judicial panel found the conclusions of the court of first instance to be erroneous, since the current legislation of the Republic of Kazakhstan does not provide for the inclusion of an heir in an already issued certificate as a method of protecting rights. The claimant was entitled to challenge the certificate of the right to inherit issued to the other heirs. Accordingly, the judicial panel set aside the judgment in that part and rendered a new judgment dismissing the claim.

General Provisions

Pursuant to paragraph 1 of the Regulatory Resolution, when resolving disputes in inheritance cases, courts shall be guided by the legislation in force as of the date the inheritance was opened.

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

As explained in the previous generalization, from 1 July 1999, that is, with 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 1 July 1999, in order to acquire an inheritance, an heir had 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 the inheritance was opened.

With the entry into force of the Civil Code of the Republic of Kazakhstan (Special Part) on 1 July 1999, the rules governing the acceptance of inheritance changed substantially. The “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.

From 3 February 2007, the previous procedure for accepting an inheritance was reinstated (Law of the Republic of Kazakhstan dated 12 January 2007 “On 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 as of the date the inheritance was opened.

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

According to the circumstances of the case, the testator, G.V.N., died on 13 December 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 inherit, the claimant was refused on the grounds that the time limit for accepting the inheritance had expired.

Such errors are systematic in nature. The failure of certain notaries to know the law results in citizens being compelled to apply to courts without proper grounds, while courts fail to prevent the unlawful actions of notaries, thereby contributing 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. During the period when the Civil Code of the Kazakh SSR was in force, there were only three classes of heirs. From 1 July 1999, the Civil Code of the Republic of Kazakhstan established six classes 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 for recognition of an heir as unworthy, recognition of an inheritance as escheated property, restoration of the time limit for accepting an inheritance, and extension of the time limit for renouncing an inheritance.

Cases concerning the above claims shall be heard at the place where the inheritance was opened.

The previous generalization addressed 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, meaning that claims for restoration of the time limit for accepting an inheritance or extension of the time limit for renouncing an inheritance should be filed with the court at the place where the inheritance was opened.

According to Article 1043 of the Civil Code, the place where an inheritance is opened is the deceased’s last place of residence, and if this is unknown, the place where the property or the greater part thereof is located.

By ruling of the Aksu District Court of Zhetisu Region dated 23 October 2024, the claim filed by A.T. against O. and others for restoration of the time limit for accepting the inheritance was improperly returned on the grounds that the case was not within the jurisdiction of that court. In returning the claim, the court stated that the deceased A.M. had been registered in the city of Taldykorgan.

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

According to the information contained in the Information Exchange System of Law Enforcement and Special Bodies (IES LESB), during his lifetime the deceased A.M. had been registered in the village of Zhansugurov, Aksu District. The police authorities provided similar information concerning the testator’s last place of residence. Furthermore, a residential building at the above-mentioned address was registered in A.M.’s name as private property.

Part 2 of Article 31 of the Civil Procedure Code establishes exclusive jurisdiction over claims brought by creditors of a deceased person against heirs, the executor of a will (trustee administering the inheritance), which shall be determined according to the location of the inherited property in accordance with the rules established by Part 1 of this Article, that is, according to 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 rules of jurisdiction apply to claims brought by creditors — such claims shall be filed at the defendant’s place of residence or location.

Disputes concerning the protection of the inheritance rights of minor children, pursuant to Part 3 of Article 27 of the Civil Procedure Code, shall be heard by specialized interdistrict courts for juvenile cases.

In certain cases, courts improperly transfer cases to specialized juvenile courts on the grounds of jurisdiction.

By ruling of the Kyzylorda City Court dated 2 October 2024, the claim filed by I. against A. for declaring the statement of renunciation of the inheritance unlawful and declaring the certificate of the right to inherit invalid was transferred, according to jurisdiction, to the Specialized Interdistrict Juvenile Court of Kyzylorda Region on the grounds that the defendant had outstanding alimony arrears owed to the claimant for the maintenance of minor children.

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

The general rule of jurisdiction (at the defendant’s place of residence or location) applies to all other cases arising from inheritance rights (including claims for invalidation of wills and certificates of the right to inherit, except for certificates concerning rights to immovable property, etc.).

By ruling of the Judicial Panel for Civil Cases of the North Kazakhstan Regional Court dated 13 February 2025, the ruling of the Gabit Musrepov District Court dated 16 January 2025 was set aside. The latter had returned the claim filed by an LLP against S. and F. for declaring a certificate of the right to inherit by law invalid.

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

The judicial panel found these conclusions unfounded, noting that defendant S. was neither a participant in the LLP or PF nor the head or former head of the said organizations. Accordingly, the conclusion that the dispute was a corporate dispute was inconsistent with the provisions of Article 27 of the Civil Procedure Code. S.’s status as an IE was irrelevant for determining whether the case fell within the jurisdiction of the SIEC, since the LLP’s claim concerned the challenge of a document establishing the rights of the defendant, who was an individual.

Pursuant to Article 307 of the Civil Procedure Code, an application in cases concerning the establishment of a fact of legal significance shall be filed with the court at the applicant’s place of residence, except for applications concerning the establishment of the fact of the existence of documents confirming ownership, possession, use and/or disposal of immovable property, which shall be filed with the court at the location of the immovable property.

By judgment of the Taraz City Court of Zhambyl Region dated 6 December 2024, the application of L.T. for establishment of the legally significant fact of 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 application to the court was prompted by a resolution of notary S. dated 11 October 2024, whereby the applicant was refused issuance of a certificate of the right to inherit following the death of her spouse and was advised to apply to the court to determine the place where the inheritance was opened, since the spouse had not been registered at the location of the inherited property (an apartment in the city of Taraz) and had been deregistered from his place of registration.

In this case, the notary unjustifiably refused to issue the certificate of the right to inherit, since, pursuant to Article 1043 of the Civil Code, the place where an inheritance is opened is the deceased’s last place of residence, and if this is unknown, the place where the property or the greater part thereof is located. Accordingly, there were no legal grounds for the court to grant the application.

A., residing in the city of Almaty, applied to the court for establishment of two facts: the fact of her family relationship with her grandmother U. and the fact of acceptance of the inheritance opened following U.’s death in the territory of Khromtau, Aktobe Region.

By ruling of the Khromtau District Court dated 2 August 2024, A.’s application was returned on the grounds that the case was not within the jurisdiction of that court, 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, pointing to the existence of immovable property belonging to the testator.

Subsequently, by 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 judgment dated 28 October 2024, A.’s application for establishment of the fact of family relationship was granted.

The analysis conducted by the Aktobe Regional Court raised the question of whether consideration of the above case in Aktobe Region on territorial jurisdiction grounds was lawful, since, pursuant to Article 307 of the Civil Procedure Code, an application in cases concerning the establishment of a fact of legal significance shall be filed with the court at the applicant’s place of residence. The exception is an application for establishment of the fact of the existence of documents confirming ownership, possession, 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, when the initial application was filed, it was necessary to take into account the rule of exclusive jurisdiction established by Article 31 of the Civil Procedure Code (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 applicable to the consideration of cases in this category include:

• Constitution of the Republic of Kazakhstan;
• Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters dated 7 October 2002;
• 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;
• Civil Code of the Kazakh SSR (hereinafter – Civil Code of the Kazakh SSR);
• Civil Code of the Republic of Kazakhstan (hereinafter – Civil Code of the Republic of Kazakhstan, Civil Code);
• Civil Procedure Code of the Republic of Kazakhstan (hereinafter – Civil Procedure Code);
• Code of the Republic of Kazakhstan “On Marriage (Matrimony) and Family”;
• Law of the Republic of Kazakhstan “On Notariat”;
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan (hereinafter – Supreme Court of the Republic of Kazakhstan) dated 29 June 1999 “On Certain Issues of the Application by Courts of Legislation on Inheritance” (hereinafter – 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 of Legal Significance”;
• Rules for Performing 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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