The concept of inheritance and its types

JSC "Astana Medical University"

Department of Forensic Medicine with the basics right

 

CDS

Topic: The concept of inheritance and its types.

 

 

 

                            Fulfilled: Zhamankulova M.

Checked:

 

 

 

 

 

 

 

 

 

 

 

 

 

Astana-2013

Plan:

 

1 . The inheritance bases by the legislation.

2 . Inheritance according to the will.

3 . Inheritance under the law.

4 . Requirements to drawing up the will.

5 . Legal duties of successors.

6.Second turn of inheritance under the law.

7 . Concept of secret of the will.

8 . Conclusion

9 . List of references

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The inheritance bases by the legislation

Resolving disputes on cases of inheritance, courts have to be guided by the legislation existing on the opening day of inheritance.

The new law making any changes and additions to a former order of regulation of the relations on inheritance, is applied to those rights and duties which arise after its introduction in action.

According to article 1042 of the Civil code of the Republic of Kazakhstan time of opening of inheritance day of death of the testator admits, and at the announcement his dead – day of coming into effect of the judgment on the announcement of the citizen the dead or the day of death determined by a judgment. If the death of citizens who could inherit one ambassador of another, came at the same time or in one calendar days, though at different o'clock, they don't inherit the friend after the friend and successors of each of them are called for inheritance.

 

Inheritance according to the will

The will will of the citizen according to the order property belonging to it on a death case admits.

The will is made by the citizen possessing at the time of his commission capacity in full.

Note

The citizen can bequeath all the property or its part to one or several persons, as entering, not entering into a circle of successors under the law, and also legal entities and to the state.

The will has to be made personally.  Will commission through the representative isn't allowed.

The testator has the right to disinherit without explanation one, several or all successors under the law.  Deprivation of the successor under the law of inheritance doesn't extend on his descendants inheriting by the right of representation if other doesn't follow from the will.

The testator has the right to make the will containing the order about any property, including about what he can get in the future.

The testator can define in any way shares of successors in inheritance, dispose of the property or its any part, having made one or several wills concerning different property.

Note

The testator is free to cancel and change the made will at any time after its commission and isn't obliged to specify the cancellation or change reason.

The testator has no right to assign to the persons appointed by it by successors in the will, the duty in turn to dispose definitely of bequeathed it of property on a case of their death.

 

Inheritance under the law

General provisions

1  .  Successors under the law are called for inheritance as the sequence provided by articles 1061-1066 of the present Code.

2  .  At inheritance under the law adopted both its posterity, on the one hand, and the adoptive father and his relatives, with another, are equated to blood relatives.

Adopted and their posterity don't inherit under the law after death of blood parents adopted, other his blood relatives.

Parents adopted and other his blood relatives don't inherit under the law after death of adopted and its posterity.

3  .  Each subsequent turn of successors under the law acquires the right to inheritance in case of absence of successors of the previous turn, their elimination from inheritance, rejection by them of inheritance or refusal of it, except the cases specified in point 5 of article 1074 of the present Code.

4  .  Rules of the present Code about sequence of calling of successors under the law to inheritance and about the size of their shares in inheritance can be changed by notarially certified agreement of the interested successors signed after opening of inheritance.  Such agreement shouldn't affect the rights of successors not participating in it, and also the successors having the right to an obligatory share.

 

Requirements to drawing up the will

The will has to be written with own hand by the testator or is written down by the notary from his words in the presence of the witness.

The notary explains to the testator of the requirement of the current legislation about an inheritance order, about need of protection of interests of minors and disabled persons, its rights and the duties having an obligatory share in inheritance regardless of drawing up the will.  At the request of the testator by drawing up the will there can be a successor about what the notary needs to make about it record on the will with the indication of its surname, a name, a middle name and

to explain to above-mentioned persons about secret of the will and to make a mark in the will text.

          Also, when the testator through illness, disability or other reason can't be in office of the notary, the notary can certify the will in a place of stay of the testator.

Drawing up oral wills, and also use in court of testimony as the proof of drawing up the will even if the testator stated the order in an oral form, though in the presence of witnesses isn't allowed.

One of types of the will is the confidential will which so seldom meets in notarial practice.

It has to be written by with own hand testator, is signed at two witnesses and the notary, sealed in an envelope at witnesses and the notary, on an envelope signatures of witnesses are put down.  Then, this envelope has to be enclosed in other envelope at witnesses and the notary on whom the notary makes a certifying inscription.

          According to RK current legislation, persons who can't be witnesses by drawing up the will, it are defined:

the person in favor of whom the will is made or testamentary refusal, his spouse, his children, parents, grandsons and great-grandsons, and also successors of the testator under the law, the citizens who aren't possessing full capacity, the illiterate and other persons, not capable to read the will, the persons having a criminal record for perjury is made.

To number of the persons which aren't possessing full capacity, belong minor, incapacitated and restrictedly capable.  To illiterate and to the persons, not capable to read the will, on sense of the law, it is necessary to carry citizens with such physical defects which obviously don't allow them to realize fully a being of the events, not knowing adequately language in which the will, not being interested persons is formed.

          The testator has the right to cancel or change at any time the will made by it, that is during lifetime of the testator the will doesn't create any rights for successors.

The will can be changed by giving to the notary of the statement for change in a certain part earlier made by it wills and drawing up the new will changing earlier made will in part.  The will can be cancelled by giving to the notary of the statement for cancellation earlier made by it wills and drawing up the new will.  Cancellation of earlier made will by drawing up new is final and irrevocable.

According to Art. 542 of the Tax Code of RK by drawing up the will the following categories of citizens are exempted from payment of the state tax:  individuals - for the certificate of their wills in favor of the state;  participants of the Great Patriotic War and the persons equated to them, the persons awarded by awards and medals of the former USSR for dedicated work and faultless military service in the back in days of the Great Patriotic War, the persons which worked (served) not less than six months from June 22, 1941 to May 9, 1945 and haven't been awarded by awards and medals of the former USSR for dedicated work and faultless military service in the back in days of the Great Patriotic War, disabled people,

mothers having many children, the awarded ranks "Mother heroine", awarded a suspension bracket.

The second turn of successors under the law

In the second turn the right to inheritance under the law is acquired in equal shares by native full, not full brothers and sisters of the testator, and also his grandfather and the grandma both from the father, and from mother.

Concept of secret of the will.

In civil science the concept of inheritance according to the will is given as inheritance on conditions and as it should be, defined by will of the testator according to the law. Being the made testator, at his life, the will in aggregate with the fact of death of the testator form that difficult legal structure which generates the hereditary legal relationship, called inheritance according to the will.

 

According to RK Group item 2st.1046 each citizen can leave according to the will all the property or part it (without excluding and subjects of a usual house situation and use) to one or several citizens, as entering, not entering into a circle of successors under the law, and also legal entities or the state. Let's notice that owing to item 4 of the same article 1046 of the Civil code the testator has the right to deprive in the will of a right of succession of one, several or even all successors under the law (except for the persons having the right to an obligatory share in inheritance).

The current legislation contains concept definition the will. So according to item 1 of Art. 1046 of RK Group the will will of the citizen according to the order property belonging to it on a death case admits.

Therefore, the will – the unilateral transaction having strictly personal character. It is thus important to note that the will is, according to P.S.Nikityuk (see: Nikityuk P. S. Law of succession and hereditary process. Kishinev, 1973, page 114), the individual transaction, i.e. can be made only on behalf of one person.

If the will contains will of two or more persons, it can be nullified.

It is necessary to remember that it is possible to bequeath only the property. However it doesn't mean that already at the will certificate the notary has the right to demand the documents confirming the property right of the testator on this or that thing. The validity of the will in this part is defined only on the moment of opening of inheritance. For example, the citizen came to notary office with a request to issue the will on the house which he was going to buy in a week. Why it should refuse this request? It is also defined by item 2 of Art. 56 of the Law RK "About a Notariate": at the certificate of wills from the testator it isn't required providing the proofs confirming its rights to bequeathed property.

According to item 5 of Art. 1046 of RK Group the testator has the right to make the will containing the order about any property.

It is possible to make the will and on that property which, though belongs (let only partially) to the testator, but "is registered" for other person. For example, same house. The owner of the house registered the wife, but the house is acquired during marriage on the general means. Means, the husband has the right to 1/2 share of the house. Thus, though the husband concerning this house "according to documents anybody", it can bequeath the share.

For commission of the testamentary order it isn't required counter will of other person.

So, the will is the transaction which legal consequences come after death of the testator.

In judicial and notarial practice cases when the testator, having specified this person in the will by the successor of a certain property sometimes meet, transfers property to future successor, and that in turn, undertakes to provide to the testator the lifelong contents.

In this case the two-way deal which is reducing, in essence, to the contract of the lifelong contents with dependence (RK Group Art. 535) takes place. Resolving an issue of legal destiny of such transaction, it is obviously necessary to be guided by rules of item 2 of Art. 160 of RK Group, i.e. rules about feigned transactions. In other words, at absence in this transaction something illegal to it it is necessary to apply rules of that transaction which the parties really meant.

The will usually carry to urgent transactions as the death of the testator on which case the will is made, inevitably has to come, sooner or later.

At the same time, the testator at any time can cancel or change earlier made will. Therefore to the will as the unilateral transaction, the known element of convention is inherent also. The act of drawing up the will until there came death of the testator, at all isn't irrevocable and irreversible.

The law determined subject structure of successors by the will. The citizens being in live at the time of opening of inheritance, and also conceived during lifetime of the testator and been born live after inheritance opening can be them. The legal entities created before opening of inheritance and existing on time of opening of inheritance, and also the state can be successors according to the will.

The will – the personal order of the person and it is directly connected with the identity of the testator and can't be made through the representative. According to item 1 of Art. 56 of the Law RK "About a Notariate" the notary certifies the will of capable citizens. Capacity of citizens arises in full with achievement of majority.

In a case when the law allows marriage before achievement of 18-year age, gains capacity in full since marriage.

Proceeding from the given standard of the legislation, it is necessary to draw a conclusion that the right to bequeath arises from the moment of achievement of 18-year age or from the moment of marriage if the last takes place before achievement of majority.

Conclusion:

Inheritance is a transition of property of the died citizen (testator) to other person (persons) - the successor (successors).

The inheritance of the died citizen passes to other persons on the terms of universal succession as a unit and at the same moment if other doesn't follow from rules of the present section.

Inheritance is regulated by the present Code, and in cases, directly it established, and other acts.

Inheritance is carried out according to the will and (or) under the law.

 

 

 

 

 

List of references:

  * "A constitutional law of the Republic of Kazakhstan" G. Sapargaliyev Almaty Zhety Zhargy 2005

  * http://www.unesco.kz/cgi-bin/library

  * PK 1995 Constitution with changes and additions на1 January, 2008 article 52,86

  * Explanatory dictionary of the Constitution of RK.

  * Ospanov K.I. Right bases, manual Almaty, Zhety Zhargy. 2007. p. 3-4