WHY A WILL IS NOT ALWAYS EXECUTED AS THE TESTATOR INTENDED

"This is my property. I have the right to dispose of it as I see fit."

This is how many people reason when they turn to a notary to draw up a will. Some openly state that they do not wish to leave an inheritance to one of their children or to another close relative, believing that a will will definitively settle the matter.

However, not everyone is aware that the freedom of testation, however broad it may seem, has limits established by law.

Indeed, every citizen has the right to bequeath their property to any person – a relative, an acquaintance, a legal entity, or even the state. At the same time, the law provides a mechanism to protect certain categories of heirs who require special legal support.

At the core of this mechanism lies a principle rooted in ancient law: one cannot allow the closest people to be left without means of subsistence by the will of the testator. This is precisely why the Civil Code of the Republic of Kazakhstan establishes rules regarding the compulsory share in an inheritance.

Regardless of the content of the will, the following individuals are entitled to a compulsory share in the inheritance:

• Minor children of the testator (including adopted children);
• Disabled children of the testator;
• Disabled spouse;
• Disabled parents.

It is important to emphasize: this list is exhaustive and is not subject to broad interpretation. Heirs of the second and subsequent priority classes, as well as heirs by right of representation, are not entitled to a compulsory share.

Consider this scenario: A father executed a will stipulating that all his property should pass to only one of his two sons. He was confident that, after his death, this son would be the sole heir.

However, on the date the inheritance opens, the second son turns out to be a person with a disability or a minor. In such a situation, the law guarantees him the right to a compulsory share, regardless of the will's content.

Such cases often become the source of family disputes.

Heirs are convinced that the notary is violating the testator's last wishes. In reality, the notary is merely complying with the requirements of the law.

In its regulatory resolution "On Certain Issues of Applying Inheritance Legislation by Courts," the Supreme Court has specifically clarified that if an heir entitled to a compulsory share is not named in the will, this does not, in itself, invalidate the will. However, if a certificate of inheritance is issued without taking into account that heir's compulsory share, it may be declared invalid by a court in the relevant part.

This is precisely why, when notarizing a will, the notary does not merely prepare the document. The notary is obliged to explain to the testator how the law regulates inheritance and in what cases certain heirs retain the right to a portion of the estate, regardless of the will's provisions.

This enables the individual to make an informed decision and to understand the actual legal consequences.

My advice is simple: if you have decided to make a will, do not rely solely on common-sense notions about inheritance. Discuss with a notary which legal provisions will apply specifically to your situation. Sometimes, a single question asked before signing a will can help avoid years of family disputes after the inheritance opens.

A will does indeed allow an individual to independently determine the fate of their property. But the freedom of testation ends where the law begins to protect the rights of those heirs whom the state has granted special guarantees.

Oleg POLUMORDVINOV