The will and its forms in the legislation of the Republic of Kazakhstan and foreign countries

Succession refers to one of the derived ways of title acquisition. Basis for succession is constituted by either will or law. As early as in the beginning of the 20^th century, I. Pokrovskiy emphasized importance of testamentary succession as a social institute of the civil law [1, p. 304- 305].

In terms of its legal nature, will refers to transactions; but since only one party is needed to settle this transaction, the will is considered to be a unilateral transaction. Therefore, it is covered by regulations on transactions of the General Part of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as CC RK). Thus, legal force of the will depends on four principal conditions, which are the conditions of any transaction validity, as follows: 1) condition on content; 2) condition on parties; 3) condition on will and will declaration; 4) condition on structure. Thereby, we can emphasize significance of the will form as one of fundamental conditions of its validity, failure to comply with which may render the will invalid.

To substantiate the significance of the will validity basis under consideration, M. Gordon stated, “peculiarity of will actually consists in the fact that it files a will of the testator expressed in one time while such arrangement becomes known to a wide range of persons later, long after the will was made. It is not easy matter to establish many years later what the testator was going to say regarding his estate destiny. Therefore, it is necessary from the very beginning to make provisions for accurate filing of the testator's will using the terms that cannot cause disputes” [2, p. 39].

Thus, form of the will is strictly regulated by the Civil Law to ensure a testator’s right of the last will as much as practical and to minimize possibility for contestation of the will content in the court.

According to Article 1050 of CC RK and Article 1124 of CC of the Russian Federation (hereinafter referred to as RF), duly executed wills are the wills that are notarized or equal to notarized (Article 1052 of CC RK, Article 1125 of CC RF); the list of such wills is comprehensive.

Thereby in compliance with the existing laws, notary form of the will is a compulsory condition of its validity, and, at this, the will should be executed and signed by the testator personally.

Let us pay attention to international legal practice in solving this issue. Thus, even Roman Civil Law stipulated nuncupative form of the will along with written one. “Should the testament be oral (testamentum nuncupativum), the testator shall express his will either with words or signs so that the witnesses could hear and understand him. Sometimes a document is made for such testament to better prove its content… Should the testament be written, it is to be handwritten by the testator with corresponding note in the text, and if this is the case, no special signature of the testator is needed (test. allographum)” [3, p. 439].

In 21^st century, civil laws of many foreign countries stipulate “possibility of making a nuncupative will in extraordinary circumstances” [4, p. 512]. Thus, according to § 2250-2251 of the German Civil Code “a person being in a location that is incommunicado due to an emergency situation in a way that it is impossible or hardly possible to make a testament in a court or a notary’s office, a person under immediate mortal danger, a person who appears to be outside a German port while going by a German flag vessel may make a testament as a parol statement witnessed by three persons. The extraordinary testament shall be considered null and void, provided that 3 moths have passed upon the date of the testament and the testator is alive” [4, p. 513].

Parol form of the will applicable only in special cases is stipulated by the Law of Hungary [4, p. 512].

Article 11 of 1837 Act of England stipulates, “any soldier being in actual military service, or any mariner or seaman being at sea, may execute nuncupative wills attested by witnesses, or wills in writing requiring neither signature, nor attestation by witnesses” [5, p. 537].

The same regulation with some differences is contained in CC RF as well.

Notwithstanding that this provision has a positive meaning and partially considers historical background of the Russian Civil Law, it is no so much relevant for RK as for RF. Unlike the Russian Federation, there are no military actions in the territory of the Republic of Kazakhstan and risk of natural calamities is not that high. These are the factors that according to the Russian lawyers caused adoption of regulations on wills made in extraordinary circumstances [6, p. 48]. Furthermore, enforcement of such provisions will require development and adoption of relevant sub-laws to establish procedure of notarial actions on conducting succession-related cases initiated due to wills that were made in extraordinary circumstances.

In terms of historical observation, several forms of testamentary dispositions were developed in Europe. Thus, Article 969 of the French Civil Code contains three forms of the will as follows: holographic will, that of record and mystic form.

Olograph or autograph will is stipulated by the Law of England as opposed to continental Europe. In this regard, English legislator provides no free choice to a testator. According to Article 9 of 1837 Act, a will should be executed in writing, signed by the testator (or some other person by his direction) and attested in his presence by at least two witnesses [7, p. 537]. The witnesses should state their full names and addresses.

In general, English olograph form of the will was accepted by all states of the USA. But according to the Uniform Probate Code of the USA it is not compulsory for wills to be written by the testator himself as opposed to autograph wills of the continental law. The testamentary disposition may be either written by other person for him or typewritten. Combination of typed and handwritten texts is also allowable though the US courts usually have difficulties in defining the will in these wills.

“Although clearly the most dramatic, § 2-503 is not the only revision to the Uniform Probate Code designed to cure "intent - defeating formalism". Holographic wills, for example, as noted above, have few formal requirements.

Yet courts typically trip over them in the one situation in which the testator's intent is comparatively clear-where the document offered for probate is an unattesеd printed will form filled in and signed by the testator in his or her writing. The requirement that holographs be in the testator's handwriting sometimes has to contend with the troublesome presence of printed or typewritten matter on the document. When that happens, courts apply various rules to construe away the printed material and determine if what remains is a will by asking: Are the "material provisions" in the testator's handwriting, is the printed matter "mere surplusage," or did the testator "intend to incorporate" the printed portions into the handwritten provisions?” [8, p. 1043].

The only exception is the Law of Louisiana that adheres to the French type of testamentary dispositions. In the USA, succession is enacted according to the laws of the states. However, differences between the laws of the states regarding this issue are not vital. Thus, the laws of Maine, Massachusetts and Illinois stipulate attestation of will by three witnesses. In other states (Arizona, Arkanzas, California), holographic will is not the only will form. In the above states, handwritten will similar to that of the laws of continental Europe, RK and RF is allowed.

In addition to olograph will inherent to probate law of English-American system, the laws of the great majority of countries require as follows: firstly, written execution of the will, secondly, attestation by a notary or any other official designated by the law.

Will notarization is also required by the laws of Italy and Switzerland as well as the regulations of the Hague Convention on the Conflict of Laws regarding the form of the testamentary dispositions. These regulations are referred by the succession legislators of several European countries (Switzerland, Austria and Belgium), i.e. countries that ratified the above Convention [9, pp. 664-667].

According to CC RK, a will must be executed in writing. In special circumstances wills attested by other persons are treated as equal to notarized ones. These wills are listed in Article 1052 of CC RK. Paragraph 2 of Article 1052 of CC RK stipulates that such wills should be attested in the presence of a witness.

CC RF (paragraph 2 of Article 1124 of the CC) stipulates, “the following persons may not act as witnesses: a notary or any other person attesting the will; the person in whose favor the will or the testamentary refusal was made, a spouse of such person, his or her children and parents (as well as adopted and adoptive persons); individuals not disposing of full legal capacity; persons unable to read or write; individuals physically challenged in a manner expressly preventing them from comprehending the essence of the issue in full; persons who cannot speak the language well enough to execute the will, except when a close will is made” [10].

Witnesses are needed to attest legality of the actions of the person attesting the will and minimize possibility of abuse by such person.

As mentioned above, Article 1050 of CC RK states personal signing of the will by the testator as a compulsory requirement to the will form.

Paragraph 3 of Article 1050 stipulates exception to the rule. “Should the testator be unable to sign the will personally owing to his physical defects, disease or illiteracy, it may be signed by other individual upon his request in presence of a notary or any other person attesting the will, with specification of reasons preventing the testator form signing the will personally” (Paragraph 3 of Article 1050 of CC RK).

The testator is not obliged to notify any other person on execution of his will, its content, revision or cancellation. His expression of will is a unilateral transaction for which will of only one party (that of the testator) is needed.

It is common knowledge that potential heirs are interested in certain consequences of the transaction. However, sometimes successors are not worthy heirs. The testator’s wish to postpone as much as possible quarrels and disputes between relatives (who often become these very heirs) regarding the upcoming division of the estate to be inherited is quite understandable.

To solve these problems, Article 1051 of CC RK stipulates secret will; its wording is being known to the testator only before commencement of the succession. No other person, including the notary, who must be present at this, can learn its content prior to death of the testator. Foreign countries have been using this form for a long time. For example, in the Federal Republic of Germany, Poland and Bulgaria it is called handwritten will, in Hungary – personally written, in Italy – secret (thought is may be written by a third party), in France – mystic, in Spain – closed will.

However, Paragraph 4 of Article 1051 of CC RK has quite superficial description of regulation of issues related to secret will.

Firstly, how many original copies of the secret will shall be made? Secondly, may the officials entitled to commit notary actions attest the secret will? Thirdly, what is the manner and order of signatures of the testator and the two witnesses on the ‘first’ envelope? Do they have to state any other data near their signatures on the first envelope? Fourthly, what document should the notary give to the testator to prove that he took the secret will for safe keeping given that it is executed as a sole original copy and kept by the notary? Fifthly, what is the procedure for the will opening?

As per the first question, it should be mentioned that the Law maximizes privacy of the will by giving legal force to the secret will. Based on this guarantee, any secret will should be executed as a sole original copy.

As per the second question, the answer is positive. If a secret will complies with the form, it was attested by an authorized official and submitted to a notary in accordance with Article 38 of the Law of the Republic of Kazakhstan “On Notariate” dd. July 14, 1997 (hereinafter referred to as Notariate Law) this will should be considered valid.

One of the significant gaps in the Civil Law of the Republic of Kazakhstan is absence of regulations on secret wills opening.

Study of legal experience of foreign countries gives some idea on possible solution of the problem. Thus, CC of the Republic of Belarus dd. December 7, 1998, CC of the Republic of Armenia dd. May 5, 1999, and CC RF dd. November 26, 2001 stipulate that the second envelope should bear statement of certification with detailed information on the testator and the witnesses, place, date and time of the will acceptance, home address of each witness as well as a notice that the notary receiving the secret will should advise the testator on the rights of the heirs who have right for compulsory portion beforehand. The testator should be granted with a document confirming the secret will acceptance.

Regarding the disclosing procedure, we can find common features in the laws of the considered foreign countries. Thus, upon receiving the testator’s death certificate the notary within 15 days maximum should tear the will envelope open in presence of at least two witnesses and interested parties out of the legal heirs that expressed their wish to be present.

Number of the attendees is not limited. When the envelope opening procedure is over and the will is announced, the notary should make a protocol, confirming the envelope opening and stating full wording of the will. Then he and the witnesses should sign it. This protocol should also state all discrepancies of meaning and content with proper will. The original will and protocol should be kept by the notary, the heirs receive a notarized copy of the protocol.

To summarize, it can be noted that currently the existing CC RK in terms of provisions regulating various aspects of will execution as a social institute covers provisions on general requirements to the will form and this can be considered a legislation progress; but along with this, it requires significant revisions of some provisions.

REFERENCES

1. Pokrovskij I.A. Osnovnye problemy grazhdanskogo prava. – M.: Statut, 2001. – 353 s.

2. Gordon M.A. Nasledovanie po zakonu i po zaveshhaniju. – M.: Juridicheskaja literatura, 1967. – 119 s.

3. Hvostov V.M. Sistema rimskogo prava. – M.: 1996. – 487 s.

4. Osnovnye instituty grazhdanskogo prava zarubezhnyh stran / Otv. red. V.V. Zalesskij. - M.: Norma, 2009. – 1184 s.

5. Grazhdanskoe i torgovoe pravo kapitalisticheskih gosudarstv / Otv. red. E.A. Vasil'ev. M., 1993. – 143 s.

6. Vlasov Ju.N., Kalinin V.V. Nasledstvennoe pravo. – M.: Omega-L, 2007. – 158 s.

7. Grazhdanskoe i torgovoe pravo kapitalisticheskih gosudarstv / Otv. red. E.A. Vasil'ev. - 3-e izd., pererab. i dop. – M.: Mezhdunarodnye otnoshenija, 1993. – 588 s.

8. Bruce H. Mann Formalities and Formalism in the Uniform Probate Code // University of Pennsylvania Law Review, Vol. 142, No. 3 (Jan., 1994), pp. 1033-1062. – URL: http:// www. jstor. org/stable/3312502

9. Konvencija o kollizii zakonov, kasajushhihsja formy zaveshhatel'nyh rasporjazhenij ot 05 oktjabrja 1961 g. // Mezhdunarodnoe chastnoe pravo. Sbornik dokumentov. Sostaviteli i avtory vstupitel'nyh statej K.A. Bekjashev i A.G. Hodakov. – M.: BEK, 1997. - S. 664-667.

10. Slobodjan S.A. Obshhie trebovanija k forme zaveshhanija. – URL: http:// www. advocate-realty. ru/