January 13, 2023

The will: how to compose it? is it possible to change or cancel it? how to get a bequested?

A will is the only way to dispose of acquired property, deposits and other property after death. You can bequeath property to heirs: other citizens or legal entities.

A person has the right to write a will containing an order about any of his property, including that which he may acquire in the future.​
The will is drawn up in writing and notarized with an indication of the place, date and time of its compilation.

It must be drawn up personally by the testator, making a will through a representative is not allowed. To make a will, the testator must come to the notary with a witness (both must have an identity card or passport). At the same time, the presence of the heir himself is not required, he may not even know about making a will.

A citizen may bequeath all or part of his property to one or more persons, both those who are included and not included in the circle of heirs by law, as well as legal entities and the state.

The will is signed by the testator and the witness. After that, the will, recorded by a notary from the words of the testator, is read by the latter in the presence of a notary and a witness before signing the will. If the testator, due to his physical disabilities, illness or illiteracy, is unable to personally read the will, its text is announced for him by a witness in the presence of a notary, about which a corresponding entry is made in the text of the will before the certification inscription indicating the reasons why the testator could not personally read the will.

If the testator, due to physical disabilities, illness or illiteracy, cannot sign the will with his own hand, it, at his request, may be signed in the presence of a notary or other person certifying the will by another citizen, indicating the reasons why the testator could not sign the will with his own hand.

Witnesses when making a will cannot be:

• notary or other person certifying the will;
• the heir in whose favor a will was drawn up or a testamentary refusal was made, his spouse, his children, parents, grandchildren and great-grandchildren, as well as the testator’s heirs by law;
• citizens who do not have full legal capacity;
• illiterate and other persons unable to read the will;
• persons with a criminal record for giving false testimony.

The will is drawn up in two copies, one of which is kept by the notary who issued it, and subsequently transferred for storage to the notary chamber or to the state archive. The second copy is issued to the testator, who can keep it or transfer it to the heir.

What documents do I need to have with me to make a will? It is not necessary to have documents for the bequeathed property, because the testator is not obliged to prove his rights to the bequeathed property in order to make a will, but it is still desirable to have these documents for making a will. The notary, when making up the text of the will, has the right to indicate the inherited property from the words of the testator, but it is necessary to describe the signs identifying the specific inherited property as accurately as possible in order not to give anyone the opportunity in the future to use the difficulties of interpreting the will as a reason to protest it. A land plot, for example, is identified by its area, cadastral number, land category and type of permitted activity, exact address, name of a garden partnership or a dacha cooperative. It is clear that these data cannot be accurately reproduced in the absence of land documents.

A will may also contain a condition, this is a will in which the testator determines the condition by fulfilling which the heir will receive the inheritance. Illegal conditions included in the order on the appointment of an heir or the deprivation of the right of inheritance are invalid. If the will contains conditions that are not feasible for the heir due to his health or due to other objective reasons, they may be invalidated by the claim of the heir.

At the will of the testator, the will may be certified by a notary without familiarization with its contents. Such a will is called a secret will.
A secret will, on pain of its invalidity, must be handwritten and signed by the testator in the presence of two witnesses and a notary and sealed in an envelope on which the witnesses put their signatures. An envelope signed by witnesses is sealed in the presence of witnesses and a notary in another envelope, on which the notary makes a certifying signature.

Who can challenge the will?

Most often, the heirs do not agree with the will, who as a result are deprived of the right to inheritance in whole or in part.

In accordance with paragraph 2 of Article 1056 of the Civil Code of the Republic of Kazakhstan, the person for whom the recognition of the will as invalid has property consequences, due to violation of the established procedure for drawing up, signing and certifying the will, that is, only the one who will receive inheritance rights if the will is declared invalid, has the right to bring a lawsuit to the court.

Is it possible to cancel or change the will?
The testator has the right to cancel or change a will that has already been executed and certified by a notary at any time after its execution and is not obliged to indicate the reasons for cancellation or change.

There are two ways to cancel or change a will:

A will may be revoked by:

• submission to the notary of an application for the cancellation of a will completely previously made by him;
• drawing up a new will.

The will can be changed by:

• submission to the notary office of an application for a change in a certain part of the will previously made by him;
• drawing up a new will that changes a previously made will.

A will may be revoked in whole or in part (in respect of any property). The testator may make a new will in favor of another person, thereby depriving the previous heir of the inheritance. The testator can also freely dispose of the bequeathed property during his lifetime (sell, donate, exchange, mortgage it). He is not obliged to inform the heir about any of these actions.

In order to ensure the secrecy of the will, the notary is not obliged to provide anyone with any certificates about wills made and canceled.
A notary, another person certifying a will, witnesses, as well as a citizen signing a will instead of the testator, are not entitled to disclose information concerning the contents of the will, its drafting, cancellation or modification before the opening of the inheritance.

Cancellation and modification of the will through a representative is not allowed. The authenticity of the signature on the application for cancellation or amendment of the will must be notarized. The notary, in the event of receiving a notification of the cancellation or amendment of a will, as well as upon receipt of a new will or an application canceling or modifying a previously drawn up will, makes an entry about it in the register for registration of notarial actions, in an alphabetical book, on a copy of the will stored in the files, and if possible, on a copy of the will available to the testator, which is withdrawn (in case of cancellation) and attached to the copy stored in the files, together with the application (if the will is canceled or changed by filing an application).

Is it possible to cancel a will after the death of the testator?

As already mentioned above, a citizen has the right to bequeath his property to anyone, including third parties, even if there are closer relatives, except in cases when he does not have the right to disinherit mandatory heirs (for example, his dependents). If close relatives do not consider the will to be fair, after the death of the testator they can challenge it.

They can make the following arguments:

there are close relatives (children, grandchildren), and the inheritance was left to a distant relative or a stranger;
some provided care and support for the testator and have the right to count on the will, and the inheritance was bequeathed to the heir, who did not even visit the testator.
To invalidate the will, the interested person must file a lawsuit with the court at the place of opening the inheritance (the last place of residence of the deceased, and if it is unknown — the location of the property or its main part). The appeal to the court should be preceded by serious preparation and collection of the necessary evidence, determination of the circle of witnesses, the need for expert examinations, assessment of the possibility of presenting weighty arguments of disagreement with the disputed will. Other interested persons from among potential heirs will be involved in the process, and appropriate expertise will be appointed, if necessary. A court may invalidate a will if it is drawn up in an improper form, that is, it does not meet the requirements that a notarized will must meet.

Receipt of bequeathed property
Thus, the heir in whose favor the will was made, during the life of the testator does not receive any rights to the bequeathed property.

The heir will have real rights after receiving a certificate of inheritance, which is issued to him by a notary after 6 months from the date of the opening of the inheritance. The list of documents and the cost of registration may vary depending on the composition of the property inherited. For example, when inheriting an apartment, the heir must provide the notary with the title documents for the apartment, a certificate of registered rights issued through the NAO “State Corporation “Government for Citizens”. When inheriting a car – a certificate of registration of the vehicle. In any case, it is necessary to have a will, a death certificate of the testator, an identity card, a certificate of where the deceased lived on the day of death.

Although the property is considered acquired by the heir from the date of the testator’s death, before the expiration of 6 months, the heir will not be able to dispose of (sell the apartment), and in some cases, use (drive a car) the inherited property. At the same time, nothing prevents you from owning and using inherited property (for example, living in an inherited apartment).

Thus, there is a certain period of time during which the heir, despite being the owner of the property, does not have documents confirming ownership and cannot dispose of it.

The above applies only to the property in respect of which registration of ownership rights is mandatory (real estate, transport). If another property (for example, furniture) passes under the will, there is no need to issue a certificate of inheritance and, therefore, these restrictions disappear.

Additionally, you can find it on the Egov E-Government website.