The will and its forms in the legislation of the Republic of Kazakhstan and foreign countries
Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014
Dautbayeva Dinara , Kazakh-American Free University, Kazakhstan
Babajanyan Yester, Kazakh Humanities and Law University, Kazakhstan
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 20th 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
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,
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
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 21st 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,
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” .
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
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
However, Paragraph 4 of Article 1051 of CC
RK has quite superficial description of regulation of issues related to secret
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
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
One of the significant gaps in the Civil
Law of the Republic of Kazakhstan is absence of regulations on secret wills
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.
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Table of contents: The Kazakh-American Free University Academic Journal №6 - 2014