1. INTRODUCTION
Certain conditions must be met for a legal heir to be
disinherited through a will. The testator must be competent at the time the
will is made; in other words, they must possess testamentary capacity and be at
least fifteen years of age. In cases of incapacity, the will may be subject to
annulment. Another requirement is that the disinheritance must be based on just
cause. The law provides specific frameworks regarding what may constitute
justifiable grounds for disinheritance. This article examines the grounds for
disinheritance, the means by which a legal heir contesting their exclusion from
the inheritance may raise objections, and the circumstances under which the
reserved portion is protected. Furthermore, it evaluates whether, in the
context of an annulment action of a will, the court may determine and review
the reserved portion and perform a reduction assessment in accordance with the
principle of claim dependence.
2. TESTAMENTARY CAPACITY
In order to make a will, the testator must meet
certain requirements, which are stipulated under Article 502 of the Turkish
Civil Code. Two conditions are prescribed for testamentary capacity. First, the
testator must possess the capacity to discern, and second, they must have
reached the age of fifteen. However, merely satisfying these conditions does
not render a will automatically valid. In cases of incapacity as described
above, or where one of the circumstances, as listed under Article 557 of the
Turkish Civil Code, exists, an action for annulment of the will may be
initiated. [1]
3. TESTATOR’S
POWER OF DISPOSITION
The testator’s power to dispose of their estate is not
unlimited. Spouses, descendants, and parents of the testator are entitled to
reserved portions, over which the testator has no discretion. The sole
exception to this rule is disinheritance. In the event that a person is
disinherited, the right to a reserved portion does not arise. [2]
4. ASSESSMENT OF GROUNDS FOR DISINHERITANCE
For a legal heir to be disinherited by the testator,
there must be a valid cause. Article 510 of the Turkish Civil Code sets out the
grounds for disinheritance. According to this provision, two situations may
give rise to disinheritance: first, the heir committing a grave offense against
the testator or the testator’s close relatives; and second, the heir’s
substantial failure to fulfill their family law obligations toward the testator
or members of the testator’s family.
Upon examination of this article, it is noted that in
the first of the two situations, a conviction is not required for the serious
offense allegedly committed by the legal heir. The assessment is conducted
based on the available evidence. The severity of the offense is evaluated in
accordance with the principles of civil law.
In the second scenario, the legal heir must have
substantially failed to fulfill the family-law obligations owed to the testator
or members of the testator’s family. It is necessary to evaluate the scope and
content of these obligations arising from family law.
Article 322 of the Turkish Civil Code should be taken
as the basis in this regard. According to this provision: “Parents and
children are obliged to assist one another, show respect and understanding, and
safeguard the honor of the family, in a manner consistent with the peace and
integrity of the family.”
These two provisions should not be interpreted
separately. If the articles are construed independently, the first scenario is
tied to stringent conditions, whereas the second scenario’s broader
interpretive scope may lead to inequitable outcomes. Accordingly, when
assessing the grounds for disinheritance, the heir’s conduct must be evaluated
based on both subjective and objective criteria. Objectively, the act must
significantly disrupt family ties, and subjectively, it must be assessed
whether the family relationship has in fact been severed as a result of this
conduct.
Following a full assessment, if a legal heir is
formally disinherited, the excluded individual is not entitled to the reserved
portion and may not initiate a reduction action. This reserved portion is added
to the portion of the estate over which the testator may freely dispose. Unless
the testator has stated otherwise, the reserved portion is treated as if the
disinherited person were deceased and passes to their descendants. If there are
no descendants, it passes to the other legal heirs.
5. ANNULMENT OF THE WILL
Pursuant to Article 557 of the Turkish Civil Code, an
action may be brought before the court to annul a will that has not been
executed in accordance with the prescribed formalities. As a result of the
litigation, the will may be annulled either wholly or partially. In the event
of total annulment, the legal heir is entitled not only to their reserved
portion but to the entirety of their statutory share of the estate.
In addition to the provisions regarding the annulment
of the will and reduction, an assessment should also be made as to whether
disinheritance is tied to a specific cause. According to Article 512 of the
Turkish Civil Code: “Disinheritance is valid only if the testator specifies
the reason for exclusion in the testamentary disposition. Should the
disinherited heir raise an objection, the burden of proving the existence of
the stated reason rests upon the heir or the legatee who benefits from the
disinheritance. If the reason cannot be proven or was not indicated in the
testamentary disposition, the disposition is executed to the extent of the
heir’s reserved portion; however, if the testator made the disposition under a
manifest error regarding the reason for disinheritance, the exclusion shall be
deemed invalid.”
A legal heir who is subject to disinheritance may
challenge the will if the grounds for disinheritance described above do not
reflect the truth. In the event of such a challenge, the burden of proving the
validity of the disinheritance rests on the heir or legatee who benefits from
the disinheritance. In other words, the other legal heirs must demonstrate that
the stated grounds for disinheritance are accurate. Disinheritance is valid
only if the reason for exclusion is explicitly indicated in the will. If the
cause of disinheritance is not specified or cannot be proven, the disposition
shall be executed excluding only the heir’s reserved portion, leaving the
remainder of the estate to the heir.
5. DETERMINATION OF THE RESERVED PORTION AND REDUCTION REVIEW
IN WILL ANNULMENT ACTIONS UNDER THE PRINCIPLE OF CLAIM DEPENDENCE
As a general rule, the principle of claim dependence
applies in reduction actions. If the will does not contain a testamentary
intention to disinherit, and an action to annul the will is filed on other
grounds, the court shall not determine the reserved portion or conduct a
reduction review in the will annulment proceedings.
The Decision, dated 20.11.2018 and bearing the Basis
number 2017/3-1017 and the Decision number 2018/1750, of the General Assembly
of Civil Chambers
“It has been understood that the court ruled to
dismiss the request for annulment of the will, and that upon examination of the
complaint, it is understood that the subject matter of the case was “the
annulment of the will registered under the journal number 12561 by the 2nd
Notary Public of Zonguldak on 05.07.2005, and the registration of the immovable
property subject to the will in the names of all heirs.”, and that the relief
sought was “the annulment of the will and the registration of the immovable property
subject to the will in the names of all heirs.”, and un the paragraph titled
“Explanations,” the only statement included was: “…the will exceeds the
disposable portion. It is contrary to law. Therefore, it must be annulled.”,
and that during the preliminary hearing, no statement regarding a reduction
request was made; in other words, it is apparent that the obligation to specify
the claim was not fulfilled, and that the appeal petition against the initial
decision dismissing the case does not contain a request concerning the
reduction of the testamentary disposition, even though the appellants had
claimed the reduction of the dispositions mortis causa, and that no decision
has been rendered regarding these requests in the appealed judgment. Considering
all these factors collectively, it is clear that the plaintiff’s request is
limited to the annulment of the will, and the mention of the disposable portion
under the complaint is intended only to indicate that the will violates legal
requirements due to exceeding the disposable portion, and in light of this, the
local court’s decision, rendered in writing, may not be deemed erroneous.” [3]
If the will contains an intention to disinherit, and
in the annulment action a challenge is raised claiming that the grounds for
disinheritance are unfounded, Article 512 of the Turkish Civil Code must be
examined. According to this provision: “If the existence of the reason
cannot be proven or the reason for disinheritance is not specified in the
testamentary disposition, the disposition shall be executed excluding only the
heir’s reserved portion; however, if the testator made the disposition under a
manifest error regarding the reason for disinheritance, the disinheritance
shall be deemed invalid.” Pursuant to this provision, in a will annulment
action, the court is tasked with examining and determining the heir’s reserved
portion and conducting a reduction review. At this point, any argument
suggesting that the determination of the reserved portion and the reduction review
may not be carried out under the principle of claim dependence is not valid.
The Decision, bearing the Basis number 2023/53 and the
Decision number 2024/464 and dated 25.09.2024, of the General Assembly of Civil
Chambers
“50. The term “tenkis”, literally meaning reduction,
diminution, or decrease (Turkish Legal Dictionary, Turkish Law Institute,
Ankara 2021, Vol. 1, pp. 574, 1092), finds its place within the institution of
the reduction (tenkis) action, which is set out under Articles 560 et seq. of
Law Nr. 4721. This action, which may be described as an innovative legal
remedy, allows for the reduction of inter vivos or mortis causa transfers that
violate the reserved portion of an heir to the statutory limit. As noted in the
recent decision of the General Assembly of Civil Chambers, this action is, of
course, subject to the general principles relating to claim dependence.
51. However, the situation differs when the
testamentary disposition subject to annulment contains a provision for
disinheritance, and an objection is raised claiming that the disinheritance is
unfounded. In such a case, Article 512 of Law Nr. 4721 becomes applicable.
Accordingly, if the existence of the grounds for disinheritance cannot be
proven, or if the reason for disinheritance is not specified in the
disposition, the law provides that “the disposition shall be executed
excluding only the heir’s reserved portion.” By this provision, the legislature
assigns the court, which acknowledges that the disinheritance is unwarranted,
the duty to determine the heir’s reserved portion and to conduct a reduction review.
This provision constitutes an exception to the principle of claim dependence,
as indicated in paragraph two of Article 26 of Law Nr. 6100. [4]
6. CONCLUSION
As a general rule, the principle of claim dependence
applies in actions for the annulment of a will. However, where the will
contains an express intention to disinherit a legal heir, the court is
required, as an exception to this principle, to examine and determine the
reserved portion and conduct a reduction review.
Although the testator’s testamentary intent is
generally upheld, the reserved portion rights arising from inheritance law must
be strictly protected. Therefore, the testator’s grounds for disinheriting a
legal heir must comply with the conditions prescribed by law. Not every reason
can independently constitute a valid ground for disinheritance. In an action
for annulment of a will, if the objection is based on the absence of a valid
ground for disinheritance or on the claim that the asserted ground does not
reflect reality, the court’s ruling will, even if the will is not entirely
annulled, affect only the portion of the heir’s inheritance exceeding the
reserved portion.
At this point, when an action for annulment of a will
is filed on the grounds that the alleged reason for disinheritance does not
reflect reality, the court is required not only to examine the annulment of the
will but also to determine the reserved portion of the legal heir targeted for
disinheritance and to conduct a reduction review.
Consequently, if the heir targeted for disinheritance
initiates an action for the annulment of the will, the court, pursuant to the
principle of claim dependence, is required to examine not only the annulment of
the will but also, additionally, to determine the reserved portion of the legal
heir subject to disinheritance and to conduct a reduction review.
Att. Şeymanur Elmas
References:
1. Dural, Öz,
Türk Özel Hukuku Miras Hukuku (Turkish Private Law Inheritance Law), p.
60
2. Antalya,
Gökhan, Miras Hukuku (Inheritance Law), p. 276
3. The
Decision, bearing the Basis number 2017/3-1017 and the Decision number 2018/1750
and dated 20.11.2018, of the General Assembly of Civil Chambers
4. The
Decision, bearing the Basis number 2023/53 and the Decision number 2024/464 and
dated 25.09.2024, of the General Assembly of Civil Chambers
