Death Establishment Lawsuit in Turkish Law
What is a Death Certificate?
A death certificate is an official document that records the fact of a person’s death, including the date, place, and cause of death. This document legally recognizes the person’s death and is used in various legal, administrative, and personal processes.
Legal Procedure for Establishing Death: A Process Applied When a Person Appears Alive
A death establishment lawsuit is a type of lawsuit filed when a person, who is actually deceased, is still recorded as alive in the population registry. This lawsuit is initiated to officially establish the death and correct the population records.
(…) The subject matter of the appeal is a “death establishment lawsuit” filed by the heir, aiming to establish that the person recorded as alive in the population registry is actually deceased, and to correct the record from “alive” to “deceased”. Due to its legal nature, this lawsuit affects inheritance rights and pertains to the Turkish Civil Code and the Population Services Law No. 5490, which aims to correct incomplete or incorrect records in the population registry. (…) 2nd Civil Chamber 2009/17090 E., 2010/21855 K.
Population Registry and Death Notification: The Functioning of Official Records
The population registry is an official document that records the births, marriages, deaths, and other significant events of a country’s citizens. In the event of a death at home, the Funeral Services Hotline should be called, and then the death should be reported to the population directorate. In the case of a death in a hospital or a legal incident, notifications are generally made by the institutions to the population directorate.
For persons who are deceased but appear alive in family registers, the concerned parties can apply to the Population Directorates with a document showing the death event. The death certificate is issued, and the death is recorded. If a document showing the death event cannot be provided, the Population Directorate can determine the death through an investigation and carry out the registration process.
In addition, it is not mandatory to apply to the population directorate for a death establishment lawsuit; the concerned person can apply directly to the relevant court.
A death establishment lawsuit initiated by a court decision aims to determine inheritance rights and correct population records. The Population Directorate examines the necessary documents to correct inaccurate records and registers the date of death.
(…) In lawsuits concerning the correction of population records, courts are obligated to create accurate records without any doubt or hesitation. Therefore, the judge has the authority to collect evidence on their own initiative as a result of the principle of ex officio investigation. In this case, instead of only determining the person’s death with inadequate research and examination, it is necessary to evaluate all evidence, such as the 1982 transfer document, primary school records, tax records, and election records related to the death date, and make a decision accordingly. (…) 8th Civil Chamber 2017/7383 E., 2018/16089 K.
Issuance and Processing of Death Certificates: Procedure and Practice
You can apply to the relevant population directorate for the issuance of a death certificate, and if the death is confirmed with evidence-bearing documents, the record correction is made. There is no need for such applications for a death establishment lawsuit because the population directorate issues the death certificate upon providing evidence of the death.
The relevant article of the Population Services Law outlines the procedures for issuing death certificates for those who appear alive in family registers but are actually deceased. Within these procedures, the accuracy of the death is verified by the population directorate, and the issued death certificate is processed with the order of the local administrative authority. The investigation of the identified records is carried out by law enforcement with the order of the local administrative authority, and the deaths of those determined to be deceased are registered.
(…) According to Article 33 of the Population Law, the process of removing the deceased person’s record from the population registry is an administrative procedure.
While the court should only decide on the determination of death and the death date, deciding to correct the alive record in the population registry to deceased in a way that forces the administration to take action is contrary to procedure and law.
RESULT: The request of the Chief Public Prosecutor of the Supreme Court to overturn the decision for the sake of law, based on Article 427/6 of the Code of Civil Procedure, is accepted for the stated reasons, and the decision is overturned without affecting the result. (…) 2nd Civil Chamber 2005/17894 E., 2006/2074 K.
Participation of Parties and Court Process in Death Establishment Lawsuits: Inheritance Rights and Correction Procedures
In death establishment lawsuits, it is important that all heirs of the person claimed to be deceased participate in the lawsuit process. However, the absence of necessary parties during the lawsuit process may prevent the court from making the correct decision. The court should ensure the participation of all parties in the lawsuit process; otherwise, the decision may be contrary to procedure and laws.
(…) Since the correction of the death record is related to inheritance rights, there is a compulsory joinder among the heirs. Therefore, all heirs must participate in the lawsuit, and a decision should be made accordingly. Without considering this aspect, making a written judgment with incomplete parties is contrary to procedure and law.
RESULT: The request of the Chief Public Prosecutor of the Supreme Court to overturn the decision for the sake of law, based on Article 427/6 of the Code of Civil Procedure, is accepted for the stated reasons, and the decision is overturned without affecting the result. (…) 2nd Civil Chamber 2005/17010 E., 2006/1130 K.
Death Establishment and Inheritance Certificate
According to Article 598 of the Turkish Civil Code, a document indicating their status as heirs is given to those determined to be legal heirs by the magistrate’s court or notary public. However, in the lawsuit for the issuance of an inheritance certificate, it is necessary to prove the death of the deceased and the date of death. These proofs are generally provided through population records, and the court acts according to the principle of ex officio investigation in non-contentious jurisdiction cases.
(…) Although it is seen that the children were 93, 98, and 100 years old respectively at the dates of their birth, and therefore there is inconsistency between the birth date of the deceased and the birth dates of the children, the heir must prove the death of the deceased, the date of death, and the lineage between the deceased and themselves, which are evident from the population records in the case file.
The court should act according to the principle of ex officio investigation in non-contentious jurisdiction cases and investigate whether there are any other heirs, and based on the result of this investigation, issue the inheritance certificate. The decision made with incomplete investigation is not correct, and therefore, the judgment should be overturned.
RESULT: For the reasons explained above, the judgment is OVERTURNED. (…) 14th Civil Chamber 2016/6894 E., 2017/8485 K.
Authorized and Competent Court in Death Establishment Lawsuits
The court authorized in death establishment lawsuits is the Civil Court of First Instance, and the competent court is the residence of the person whose death is to be established or the residence of the plaintiff.
There is no statute of limitations or prescriptive period for filing a death establishment lawsuit, which means such a lawsuit can be filed by interested parties at any time.
(…) According to Article 36, paragraph 1/a of the Population Services Law No. 5490, correction lawsuits related to population records must be filed by the public prosecutors at the competent civil court of first instance at the address of the person’s residence or the residence of the official agency showing the need for correction. The jurisdiction of this court is not subject to objection and is related to public order, which must be considered by the court ex officio.
From the file content, it is understood that the address of … registered in the population as deceased is “Bozkurt / Kastamonu”. Therefore, the lawsuit should be heard and concluded at the İnebolu Civil Court of First Instance.
For the reasons explained above; According to Articles 21 and 22 of the Code of Civil Procedure and Article 36/3 of Law No. 5235, the İnebolu Civil Court of First Instance is determined as the JURISDICTION. (…) 5th Civil Chamber 2022/1040 E., 2022/1412 K.
For more help or consultancy on this topic, you can contact us.
Death Establishment Lawsuit in Turkish Law
”
