Disinheritance in Turkish Law
What is disinheritance? Sometimes, one may deprive heirs of its inheritance. This deprivation is only applicable for heirs with reserved portion. Under normal conditions, even if the legator does inherit nothing to an heir, some rights of the heir with reserved portion on the inheritance are legally protected.
Who are the heirs with reserved portion? These people are expressly stated in the law. They are the parents, spouse and descendants of the legator. The descendants are the children of the legator. If the children have died, the descendants are the grandchildren of the legator. Their reserved portion on inheritance is legally protected even if the legator inherits nothing to them.
WHAT ARE THE CONDITIONS OF DISINHERITANCE IN TURKISH LAW?
- In Turkish law, there are two main situations where the conditions of disinheritance arise; criminal cases and disinheritance for protection. In criminal cases, to disinherit an heir, it should commit a felony against the legator or its kinsmen. Whether a crime is a felony or not is determined by the judge with its discretion. The crime should have the quality of breaking family bonds.
The heir with reserved portion does not perform its obligations for the legator or the family arising out of family law. If the heir does not perform its obligations on matters like fidelity, care, protection or support for its family, it may be disinherited. In addition, if the heir leads a bad life or have bad habits and this causes non-performance of its obligations, it may be disinherited.
All of the above-mentioned matters are related to the criminal aspect of disinheritance. Disinheritance also has a protective function, which can be summarized as follows;
- Disinheritance on the Ground of Insolvency
In this case, the legator aims to protect the heir from being liable for its debts after the legator’s death. These are the conditions of such kind of disinheritance;
- The heir is insolvent.
- The heir is the descendant of the legator.
- The protective disinheritance is made on the behalf of the children of the heir who were born or who will be born.
- Disinheritance is made through a will or inheritance contract.
WHAT ARE THE CONSEQUENCES OF DISINHERITANCE?
With disinheritance, the capacity of being heir ends. This person cannot have a share from the inheritance and cannot take action for reduction.
Under normal conditions, the wealth, credits and debts of the legator is inherited to its heirs. However, when an heir is disinherited, it will not be liable for debts as well as it will not benefit from credits and wealth.
CAN DISINHERITANCE BE CANCELLED?
Although disinheritance is a transaction carried out by the legator, the heir can cancel this transaction under some conditions. By taking action for annulment or reduction, if the heir can prove that disinheritance is unfair and it has an interest that should be protected, the transaction of disinheritance can be cancelled.
THE TURKISH COURT DECISIONS
The heirs who benefit from disinheritance should prove the rightfulness of the ground for disinheritance
In the judgement of Yargıtay 3rd Civil Chamber dated March 03, 2019 and numbered 2017/13850-2019/2573, “The ground for disinheritance in the will of the legator dated September 05, 2007 is stated as the daughters of the legator, who are the claimants of the present case, did not take care of the legator during its illness. The facts of the case show that the legator resided in a village and went to … for treatment from time to time. His spouse died in July 03, 2007 and following this he moved to the house of his son, the respondent, who resided in… and stayed there until his death. The claimants who resided in ….. frequently visited the legator at the respondent’s home and performed their obligations arising out of family law. This fact is proved by the witness’s statements. In other words, the respondents, who benefits from disinheritance, cannot prove the rightfulness of the ground for disinheritance that they claim. “ When this judgment is analyzed, it is seen that, when an hair is disinherited, the other heirs have to prove the rightfulness of the ground for disinheritance. In the above-mentioned case, the legator disinherit his daughters on the ground that they did not take care of him during his illness. The claimant daughters took action for the annulment of disinheritance. The other heirs could not prove the rightfulness of the ground for disinheritance although they had to. In addition, the witnesses state that the claimants did not neglect their family obligations. Therefore, the unfairness of disinheritance was proved.
The Spouse Who is Faulty for Divorce cannot be an Heir
In the judgement of Yargıtay 14th Civil Chamber dated November 18, 2017 and numbered 2016/14899-2017/7670, “ It is set out in Article 181 of the Turkish Civil Code that the faulty spouse for divorce cannot be the heir of the other spouse. It is not necessary to take declaratory action to establish the faultiness. In other words, when a spouse die during the divorce case, if the heirs of the dead spouse proceed with the case, whether the other spouse is faulty or not will be established in the divorce case, and if it can be established, the faulty spouse can be deprived of being heir of the dead spouse pursuant to Article 181. Thus, the portions of other heirs in the inheritance will be determined accordingly. On the other hand, as per Article 510/1 of the Turkish Civil Code, disinheritance can be only made through disposition mortis causa. In the present case, the dead spouse did not disinherit the other spouse through disposition mortis causa, therefore this provision is not applicable for the case.” In the above-mentioned case, the heirs of the dead spouse claimed that the other spouse was faulty for divorce and requested that it had to be disinherited from the legacy of the legator. However, no disposition mortis causa setting forth inheritance of the other spouse existed. The Court of Cassation provided that, in a case in which the faultiness of the other spouse is claimed, the other spouse cannot be disinherited pursuant to Article 510/1. Instead, Article 181 should be applied in the case, and if it is established that the other spouse is faulty for the divorce, it cannot be the heir of the other spouse
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