How to Waive Inheritance Under Turkish Law?
Waiver of Inheritance: What is an Inheritance Waiver Agreement?
An “Inheritance Waiver Agreement,” also known as a “Waiver of Inheritance,” is an agreement made between a testator and a potential heir. This agreement aims to partially or fully waive the future inheritance rights.
With this agreement, the inheritance right is waived; however, it is important to note that this right does not currently exist. The inheritance right arises upon the death of the testator, and heirs gain these rights with the testator’s death. Therefore, property rights related to inheritance assets also arise with the testator’s death.
An Agreement Aiming to Partially or Fully Waive Inheritance Rights
The inheritance waiver agreement may include the entire expected right or a specific part. In this case, the waiver can be complete or partial. In the case of a full waiver, the heir waives all rights and usually loses the status of heir (Civil Code Art. 528/II). However, in partial waiver, the heir status generally continues, and only a portion of the inheritance is waived, in which case the heir’s rights to the estate proportionally decrease.
How is an Inheritance Waiver Agreement Made?
The inheritance waiver agreement is one of the inheritance agreements and, therefore, must be executed as an official will before a notary, according to Article 545 of the Turkish Civil Code. There is no time limitation, statute of limitations, or prescription period to waive the inheritance, unlike rejecting the inheritance.
Parties and Scope of the Waiver Agreement
Article 528 of the Civil Code states that a testator can make an inheritance waiver agreement with an heir either unilaterally or reciprocally. This provision indicates that an agreement can be made with any type of heir. For example, an agreement can be made with an heir from the second group even if there are heirs from the first group.
The waiver agreement can be made with legal heirs with or without a reserved portion or heirs appointed by will. However, the testator does not need to make a waiver agreement with legal heirs without a reserved portion or heirs appointed by will, as the testator always has the authority to exclude these heirs from inheritance upon death. The main focus is on the waiver agreement made with heirs with a reserved portion.
Rights and Obligations of the Testator and Heir
Although the person waiving the inheritance loses their inheritance rights according to Article 528/II of the Civil Code, in waiver agreements made with compensation, the compensation received (ivaz) may need to be returned due to the reduction case mentioned in Article 574. In this case, the heir waiving the inheritance may repay the value subject to reduction or return the compensation entirely, participating in the distribution as if they had never waived.
According to this provision, in waiver agreements made with compensation, the termination of the waiving heir’s inheritance rights must accept the condition of not returning the received compensation in the event of a reduction.
In other words, if this possibility occurs, the termination of the waiving heir’s inheritance rights is as uncertain as before. Whether this possibility will occur can be determined after the estate account and then the reduction account are made. Therefore, the direct application of Article 528/II in waiver agreements made with compensation is not always possible.
Protection and Limits of Heirs
During this period, protection is provided for heirs, but this protection is limited and indirect. For example, reserved shares are protected by legal provisions, and the testator cannot dispose of these shares. For other heirs, the testator does not have the right to unilaterally cancel the inheritance agreement.
Furthermore, the testator’s dispositions related to death other than the inheritance agreement and inter vivos donations can be challenged (Civil Code Art. 527/II). However, these protections do not completely prevent the testator from disposing of the estate as desired.
Heirs with reserved shares and appointed heirs will take their shares based on the amount remaining in the estate at the time of the testator’s death. Therefore, the expectations of potential heirs regarding their inheritance rights cannot be directly accepted as a guarantee.
Types of Waiver Agreements
Inheritance waiver agreements can be divided into various types. The most basic distinction is between waiver agreements made with compensation (ivazlı) and without compensation (ivazsız). Another distinction is between full or partial waivers. In addition, there are various types of waivers, such as those affecting descendants or not, and unilateral or reciprocal waivers.
The law has not entirely regulated these types. Some types of waiver agreements are considered theoretically possible in doctrine, so the absence of regulation in the law is natural.
Considering these features, it should be noted that there are some gaps in the law regarding inheritance waiver agreements, and even some provisions related to waiver agreements contain explicit or implicit gaps.
Reciprocal and Non-reciprocal Waiver Agreements
The waiver agreement can be made reciprocally (ivazlı) or non-reciprocally (ivazsız), but it is generally done reciprocally. In reciprocal waivers, the compensation received by the heir is defined in Article 565 of the Civil Code as “transfers made with the purpose of liquidation of inheritance rights before death.”
As can be understood from this definition, the waiving heir receives their future inheritance right in advance. In this case, it is not important that the compensation received by the heir is less than the future reserved portion.
Therefore, the waiving heir cannot object that the compensation received is less than the reserved portion. Furthermore, the testator cannot request the return of the compensation given if conditions preventing the waiving heir from being an heir occur.
Compensation and Effect on Descendants in Inheritance Waiver Agreements
According to the third paragraph of Article 528 of the Civil Code, “a waiver of inheritance made with compensation shall also have effects for the descendants of the waiving heir, unless otherwise stipulated in the agreement.” This provision indicates that in the case of a non-reciprocal waiver, the descendants of the waiving heir will not lose their heirship status.
In the inheritance waiver agreement, it is possible for the waiving heir to waive all or part of the expected inheritance right.
However, when we consider the provisions related to the waiver of inheritance together, we see that the legal regulations generally focus on full waiver. There is no direct regulation regarding partial waiver.
If we accept that the legal provisions on the waiver of inheritance are based on full waiver, in the case of waiver of a specific proportion of the future inheritance right, this proportion may be the reserved portion or the proportion between the reserved portion and the inheritance share.
Waiver of Inheritance and Beneficiaries
According to Article 529 of the Civil Code, “If the waiver of inheritance is made in favor of a specific person and this person cannot become an heir for any reason, the waiver becomes invalid.” According to the same article, “If the waiver of inheritance is not made in favor of a specific person, it shall be deemed to have been made in favor of the nearest descendant of the common ancestor, and if these persons cannot become heirs for any reason, the waiver again becomes invalid.”
As can be understood from these provisions, the waiver agreement can be made in favor of a specific person or without specifying a person to benefit from the waiver. The person benefiting from the waiver can be a third party, an heir, or several heirs. A waiver made in favor of a specific person also includes the act of appointing an heir.
Waiver in Favor of a Specific Person and Invalidity
In the case of a waiver agreement made in favor of a person, there is no consensus in doctrine on whether the provision that the waiver becomes invalid if this person cannot become an heir should also apply in the case of a waiver made with compensation.
However, the prevailing view today is that this provision should also apply in the case of a waiver made with compensation. This is because there is no limitation in the law regarding the application area of this provision.
In the waiver agreement, if one or more specific persons to benefit from the waiver are not determined, the waiver shall be deemed to have been made in favor of “the nearest descendant of the common ancestor.”
In this case, if the testator’s spouse and first group heirs are present, and a descendant heir of the testator has waived, if the waiver is not made in favor of a specific person, the persons benefiting from the waiver shall be the other descendant heirs who have not waived, as mentioned in the law about “the nearest descendant of the common ancestor.”
If there are no heirs among the descendants, the waiver agreement becomes invalid, and the waiving heir becomes an heir.
Waiver of Inheritance and Spouse’s Rights: Who Benefits from the Waiver?
If the waiving heir is among the heirs with a kinship to the testator, the application of this provision generally does not pose a problem. However, when the testator’s spouse waives the inheritance without specifying a specific person, the question arises as to who will benefit from the waiver. This provision does not foresee that the spouse comes from the same root or group as other heirs.
Therefore, in the case of the spouse waiving the inheritance, the most appropriate interpretation for the purpose would be to understand this provision as “if the spouse had not waived, who would have been the heirs, the waiver is deemed to have been made in favor of those persons.”
Waiver of Inheritance and Reserved Share
In cases where the waiver is made in favor of a specific person, the testator cannot dispose of the reserved share of the waiving heir. If the testator disposes of the reserved share of the waiving heir, the person appointed as the heir by the waiver agreement can object to this disposition.
Although the disposition freedom of the waiving heir’s reserved share is limited in such waiver agreements, this limitation is of little importance because the testator can freely dispose of the total disposition freedom outside the part increased due to the waiver.
In summary, the amount of the testator’s disposition freedom before the waiver remains the same after the waiver agreement; only the part increased due to the waiver is limited.
Protection of Reserved Share in Waivers Not Made in Favor of a Specific Person
In cases where the waiver is not made in favor of a specific person, the waiver is deemed to have been made in favor of the heirs in the same group as the waiving heir. In this case, the testator can dispose of the reserved share of the waiving heir. This means that the benefit of the waiver is conditional upon the testator not disposing of the waived share.
However, if potential heirs (excluding the surviving spouse) have waived without compensation (ivazsız) and the waiver is not made in favor of a specific person, the descendants of the waiving heir will be the heirs with reserved shares and can claim their reserved shares. In this case, the testator can only dispose of the waived share if the disposition freedom increases.
In waivers made without specifying a person, if the testator has disposed of the reserved share of the waiving heir and no one in the same group can become an heir, the waiver shall be deemed invalid. In this case, the waiving heir can claim their reserved share as if they had never waived, and the testator can file a reduction case against the transfers made. In this case, the testator’s disposition freedom shall be calculated without considering the reserved share of the waiving heir.
Annulment of Inheritance Waiver Agreement Case
An inheritance waiver agreement made between the testator and the prospective heir can be annulled for reasons such as legal incapacity or defects in consent. However, in such a case, a lawsuit must be filed to annul or terminate the inheritance waiver agreement. It should be noted that the lack of form is a reason for invalidity, not annulment. Because an inheritance waiver agreement that does not meet the legal form requirements will not be considered legally established.
However, reasons such as legal incapacity, defects in consent, or lack of form cannot be asserted in violation of the principle of good faith and the prohibition of abuse of rights. For example, if a reciprocal waiver agreement has been made and compensation has been received from the other party within this agreement, later asserting reasons such as defects in consent or lack of form for the annulment or invalidity of this agreement will be against good faith.
Court of Jurisdiction and Competence in Annulment of Inheritance Waiver Agreement Case
The court of jurisdiction in the case of annulment of the inheritance waiver agreement is the Civil Court of First Instance. The competent court is the court where the testator’s last place of residence is located.
Time Limit in Annulment Case
A lawsuit must be filed within one year from the date the reasons for annulment are learned in the judicial authorities where the testator’s last place of residence is located. This way, the annulment of the inheritance waiver agreement becomes possible.
Differences Between Waiver of Inheritance and Rejection of Inheritance
Waiver of inheritance and rejection of inheritance are different concepts and should not be confused. Rejection of inheritance can be done unilaterally after the testator’s death; the waiver of inheritance is done during the testator’s lifetime and with their participation, as a bilateral agreement in writing.
In the case of rejection of inheritance, the descendants of the rejecting person are usually not affected by this rejection and gain heir status. However, in the case of an inheritance waiver agreement, the descendants of the testator can be affected differently depending on whether the waiver agreement is reciprocal or non-reciprocal.
In the case of rejection of inheritance, Article 617 of the Turkish Civil Code gives the creditors of the rejecting heir the right to file a lawsuit for annulment of the rejection. However, this provision cannot be used by analogy in the case of waiver of inheritance.
Example Supreme Court Decisions on Inheritance Waiver Agreements
14th Civil Chamber 2018/3787 E., 2021/2893 K.
“Judgment Text”
COURT: Civil Court of First Instance
Following the petition filed by the plaintiffs’ attorney on 25.07.2012, requesting the annulment of the inheritance waiver agreement against the defendants; at the end of the trial, the decision to reject the case given on 16.07.2013 was appealed by both the plaintiffs’ and the defendants’ attorneys. After the acceptance of the timely appeal petition, the file and all the papers within it were examined and the following decision was considered:
DECISION
The case is about the request for the annulment of the inheritance waiver agreement.
The plaintiffs’ attorney claimed that the plaintiff … made the inheritance waiver agreement to be cared for until death, but the defendants did not care for their father …, despite this being the main purpose of the waiver agreement, and requested and filed for the annulment of the agreement.
The defendants’ attorney requested the rejection of the case.
The court decided to reject the case.
The decision was appealed by both the plaintiffs’ and the defendants’ attorneys.
Since the dispositions related to death produce their effects and results after the testator’s death, the legislator has tied the establishment of these dispositions to strict form requirements due to this feature.
The legislator has stipulated two different form requirements for making dispositions related to death. One is the will made unilaterally by the testator, which can always be revoked (Civil Code Art. 531-544), and the other is the binding inheritance agreement made bilaterally.
For the inheritance agreement to be valid, it must be executed in the form of an official will according to Article 545/I of the Turkish Civil Code.
Since the inheritance waiver agreement is legally an inheritance agreement, the above-mentioned rules will also apply to the establishment of the inheritance waiver agreement.
In the present case, although the court characterized the agreement made at … 1st Notary Office on 19.04.2007 as an inheritance waiver agreement; the agreement is an inheritance waiver agreement between … and the waivers …, …, …, …, while it is a transfer agreement of unopened inheritance shares among the other heirs.
Heirs can transfer their rights transferred to them through inheritance to other heirs or non-heirs either for consideration or without consideration.
According to Article 677/1 of the Turkish Civil Code, the validity of agreements made among heirs regarding the transfer of inheritance shares on the entire estate or a part thereof is subject to written form.
Moreover, Article 678 of the Civil Code requires the participation or consent of the testator for the validity of agreements made regarding unopened inheritance shares, stating that agreements made by an heir with other heirs or a third party about an unopened inheritance share without the testator’s participation or consent are not valid.
Although the court’s characterization of the case as an inheritance partition agreement and the rejection of the case for reasons of the return from donation are not correct; the rejection of the case is found to be correct in result, and the decision is affirmed by correcting the reasoning under Article 438/IX of the Code of Civil Procedure.
CONCLUSION: For the reasons stated above, the appeal objections of the plaintiffs’ and defendants’ attorneys are accepted, the local court’s decision is affirmed with corrected reasoning, the advance fee is refunded to the appellants upon request, and it is unanimously decided on 19.04.2021 that the way of rectification of the decision is open within 15 days from the notification of the decision.
8th Civil Chamber 2013/10751 E., 2013/11676 K.
“Judgment Text”
COURT: Civil Court of First Instance
TYPE OF CASE: Cancellation and Registration
… and … with … and their associates filed a lawsuit for the cancellation and registration of the title deed, which was rejected by the … Civil Court of First Instance on 06.04.2012 with decision number 61/173. Although the plaintiffs’ attorney requested an appeal within the time frame, the request for a hearing was rejected based on the value; the file was examined, and the following decision was considered:
DECISION
The plaintiffs’ attorney … and … stated in the petition that the parcels 6, 12, 314, 293, 158, 162, and 471 of block 1 were registered in the name of the joint decedents … and the new parcel numbers 562 and 250 were registered in the name of the joint decedent …, and according to the inheritance waiver agreements separately arranged at the notary on 02.02.1957 with journal numbers 956 and 957, “the defendants …, …, …, and … waived their rights in all registered and unregistered properties belonging to the joint decedents in favor of the plaintiffs for 5,000,000 TL, parcel 250, and parcel 103 of block 1.” They requested the cancellation of the title deed and the registration of parcel 6 block 12 in the name of the plaintiffs with 1/2 shares, parcel 314 in the name of the plaintiffs …, and parcels 293, 158, 162 in the name of the plaintiffs ….
The defendants’ attorney stated that one of the decedents, … was illiterate, and the agreement was invalid due to lack of form, the decedents were incompetent, the agreements violated the reserved shares of the defendants, the case was time-barred, a property not belonging to the decedents was included in the agreement, and part of the money obtained from the partial expropriation of the old parcel 250 was taken by the plaintiffs and requested the rejection of the case.
The court decided to reject the case due to the lack of form because one of the heirs, …, was illiterate when the inheritance waiver agreement was made with the participation of the decedents.
The decision was appealed by the plaintiffs’ attorney.
Although the court rejected the plaintiffs’ attorney’s request for cancellation and registration based on the inheritance waiver agreement, the court’s decision cannot be agreed upon.
The inheritance waiver agreement is a bilateral agreement made between the testator and the potential heir during the testator’s lifetime, waiving all or part of the expected inheritance right in exchange for consideration or without consideration. Since the testator is still alive, the subject of the inheritance waiver agreement is not an inheritance right but an expectation related to it.
According to Article 528 of the Civil Code, the testator can make such an agreement with an heir with or without compensation. When the agreements in the file, arranged consecutively with journal numbers on the same day, are examined together, it is determined that the joint decedents did not intend to deprive the plaintiffs or the defendants of their inheritance expectations, and similarly, the plaintiffs or the defendants did not waive their inheritance expectations either partially or completely.
According to Article 33 of the Code of Civil Procedure (repealed Article 76 of the Code of Civil Procedure), parties are responsible for stating the facts, and the judge is responsible for making the legal characterization and applying the necessary legal provisions to resolve the dispute.
According to the content of the petition and the scope of both agreements, the notary agreements in question were arranged for the distribution of the testators’ assets, and in this case, the legal basis of the lawsuit is related to inheritance partition, not inheritance waiver.
According to Article 676 of the Civil Code, inheritance partition agreements can be made on the entire estate or a part thereof. Articles 677 and 678 of the Civil Code also state that agreements made with the participation of the testator regarding unopened inheritance shares with other heirs are valid.
In this situation, the court should have evaluated the evidence and resolved the dispute in light of Articles 676 and subsequent articles of the Civil Code instead of making a legal error by making a decision as written.
For the reasons stated above, the appeal objections of the plaintiffs’ attorney are accepted, the local court’s decision is annulled under Article 428 of the Code of Civil Procedure, referring to Article 3 of the Provisional Article of the Code of Civil Procedure No. 6100, and the advance fee of 21.15 TL is refunded to the appealing plaintiffs upon request, and it is unanimously decided on 12.09.2013 that the way of rectification of the decision is open within 15 days from the notification of the decision.
For more assistance or consultation on this matter, please contact us.
Waive Inheritance Under Turkish Law
