INHERITANCE AGREEMENT

The arrangements made by a person concerning their rights over their assets for their heirs or specific individuals after their death are referred to as posthumous dispositions. The desired legal outcome in these transactions becomes apparent after the death of the testator. Posthumous dispositions can be divided into formal posthumous dispositions and substantive posthumous dispositions. Formal posthumous dispositions are those that the testator must adhere to and are bound by when expressing their intentions. Due to the limited number principle in formal posthumous dispositions, they can be either a will or an inheritance contract.

What is an Inheritance Agreement?

After the death of the testator, contracts made among the heirs or between the heir and third parties that partially or completely modify or eliminate the inheritance rights that the heirs have against each other or third parties are referred to as inheritance agreements. As implied by its name, the inheritance agreement has a contractual nature. While alive, the testator, one of the parties to this agreement, can make certain arrangements concerning their assets for after their demise. These can be arrangements related to the protection of heirs, organizing the rights and responsibilities of heirs, and the distribution of the inheritance.

There are certain posthumous dispositions that the testator can or cannot make through the inheritance agreement. Posthumous dispositions that the testator can make through the inheritance agreement include: The testator can appoint heirs, appoint substitute and additional heirs, disqualify heirs, or bequeath a specific asset to one of the heirs or a third party. The testator can also impose conditions and obligations on an individual through the inheritance agreement. Posthumous dispositions that the testator cannot make through the inheritance agreement include not being able to make any disposition on the reserved shares of legal heirs if any and ensuring that the inheritance agreement does not violate law or morality.

Difference Between Inheritance Agreement and Will

Inheritance Agreement Both a will and an inheritance agreement are forms of posthumous dispositions. However, there are differences between a will and an inheritance agreement: Firstly, there’s a difference concerning capacity. To create a will, one must be fifteen years old with discernment, whereas for an inheritance agreement, full legal capacity is required; meaning one must be eighteen, not be incapacitated, and have discernment. A will can be handwritten, official, or even oral in extraordinary circumstances, whereas an inheritance agreement must be formal. A will can be freely revoked until the time of death, whereas, being a contract, an inheritance agreement generally cannot be unilaterally withdrawn.

Purpose of the Inheritance Agreement There can be various objectives for entering into an inheritance agreement:

– Inheritance agreements aim to determine how the inheritance will be distributed among heirs or between heirs and third parties. Thus, a person can plan the distribution of their inheritance according to their wishes in advance.

– Inheritance agreements can be made to prevent disputes regarding the distribution of inheritance. A predetermined plan can reduce potential disagreements among heirs and ensure a systematic division of the inheritance.

– Inheritance agreements can be made to protect the rights of heirs. Especially when a person wants to leave their assets to specific individuals, a contract can be drafted to protect the heirs in accordance with certain legal regulations.

– Inheritance agreements can serve as an alternative to wills for posthumous arrangements. Apart from what is specified in a will, the distribution of inheritance can be regulated through agreements among heirs under certain conditions.

What are the Types of Inheritance Contracts?

Inheritance contracts are generally agreements made between heirs or between an heir and third parties, which modify or regulate inheritance rights. The types of inheritance contracts include: positive and negative inheritance contracts, unilateral and bilateral inheritance contracts, onerous and gratuitous inheritance contracts.

What is a Positive Inheritance Contract?

A “positive inheritance contract” is a type of contract where the testator can appoint heirs and make specific bequests, also briefly referred to as an “inheritance contract” in legal doctrine. With this contract, the testator can obligate themselves to transfer their inheritance or a specific asset to a designated individual. However, while the testator retains the right to freely dispose of assets outside the contract, any posthumous dispositions contradicting the contract may be deemed invalid.

This type of inheritance contract is regulated under Article 527 of the Turkish Civil Code. “The testator may obligate themselves through an inheritance contract to bequeath their inheritance or specific assets to the contracting party or a third party. The testator may still freely dispose of their assets; however, any posthumous dispositions or donations contradicting the terms of the inheritance contract can be contested.” The inheritance contract is an agreement made between the testator and the counterparty, further divided into three categories.

What is a Negative Inheritance Contract (Renunciation of Inheritance)?

Known as “renunciation of inheritance” in legal doctrine, a “negative inheritance contract” is a contract where an heir renounces their inheritance without any compensation or for specific consideration. The renouncing party loses their inheritance rights, and this loss extends to their descendants.

What is a Unilateral Inheritance Contract?

A unilateral inheritance contract is a type of contract where only one party makes binding posthumous dispositions on their estate, without any reciprocation from the other party.

What is a Bilateral Inheritance Contract?

A bilateral inheritance contract is a type of contract where both parties involved can make binding posthumous dispositions on their respective estates.

What is an Onerous (Reciprocal) Inheritance Contract?

An “onerous (reciprocal) inheritance contract” is a type of contract where both parties reciprocally make posthumous dispositions, and in return, each party assumes certain obligations.

What is a Gratuitous (Unilateral) Inheritance Contract?

A “gratuitous (unilateral) inheritance contract” is a type of contract where the testator makes posthumous dispositions, and the other party merely accepts the testator’s intentions without assuming any obligations.

What are the Formal Requirements For an Inheritance Contract?

Inheritance Contract: According to Article 545 of the Turkish Civil Code (TMK), for an inheritance contract to be valid, it must be prepared in the form of an official will. The parties must convey their intentions to an official officer and sign the contract in the presence of the officer and two witnesses.

Starting with the article, the first requirement is to be prepared in the form of an official will. The validity concerning the form of an official will is regulated in Articles 532 and subsequent articles of the TMK. According to the second paragraph of Article 532 of the TMK, the intention for an official officer can be: “An official officer can be a peace judge, notary, or another authorized official as provided by law.” In practice, a notary serves as the official officer for inheritance contracts. Unlike a will, an inheritance contract can only be made in writing. An orally made inheritance contract is not valid. Additionally, given that the inheritance contract is a bilateral legal transaction, it is generally not possible to unilaterally revoke this contract, subject to certain exceptions.

What is the Capacity to Enter into an Inheritance Contract?

The capacity to enter into an inheritance contract is outlined in Article 503 of the TMK, which requires being of legal age, having discernment capability, and not being restricted. This means that the individual making the posthumous disposition must have full legal capacity. For the party not making the posthumous disposition, general capacity rules apply. The capacity to enter into an inheritance contract may differ between parties, depending on their involvement in posthumous dispositions. The rules regarding capacity are the same for renunciation of inheritance contracts.

Under general capacity rules, a person with no capacity can have their legal representative enter into an inheritance contract on their behalf. If someone with no full capacity is under guardianship, the consent of the relevant courts is required. According to Article 463 of the TMK, obtaining the consent of the guardianship authority is mandatory before entering into an inheritance contract, followed by the approval of the supervisory authority. The relevant authorities here refer to the peace and first-instance courts. If the party not involved in the posthumous disposition has limited capacity, it is determined whether the individual is under an obligation. A person with limited capacity can enter into a gratuitous inheritance contract without a legal representative.

Regarding a party not complying with capacity rules, if the party with general capacity is fully incapacitated, the contract is definitively void. If a contract is made by someone with limited capacity without the consent of their legal representative, it will have the same consequence as if made by someone fully incapacitated. Consequently, the inheritance contract will be definitively void in both situations. Regarding the incapacity of the testator, Article 557 of the TMK will apply. If a testator lacks the capacity to dispose of their assets and enters into an inheritance contract, this contract will be subject to cancellation penalties.

How does an Inheritance Contract terminate?

An inheritance contract can end in various ways due to specific circumstances. One can terminate the inheritance contract by mutual agreement between the parties or by revocation. Termination through mutual agreement means that the parties end the inheritance contract in writing. This situation is regulated in Article 546 of the Turkish Civil Code (TMK): “An inheritance contract can always be terminated by the written agreement of the parties. If the person designated as an heir or given specific property acts in a way that justifies termination of the inheritance after the contract is made, the testator can unilaterally terminate the inheritance contract. Unilateral termination is made in one of the forms prescribed by law for wills.”

Another way the contract can terminate is through rescission or revocation. This scenario is also addressed in Article 547 of the TMK: “If the party entitled to obligations under the inheritance contract finds that these obligations are not fulfilled according to the contract or not secured, they can revoke the contract under the rules of contract law.”

Article 548 of the TMK addresses the automatic termination of the inheritance contract: “If the person designated as an heir or given specific property is not alive at the testator’s death, the inheritance contract automatically terminates.”

The inheritance contract can also end through its cancellation. The grounds for cancellation are related to the consequences of incapacity, as mentioned earlier. Regarding the grounds for a cancellation lawsuit: “A lawsuit can be filed for the cancellation of a testamentary disposition for the following reasons:

– If the disposition was made when the testator lacked testamentary capacity,

– If the disposition was made due to deception, fraud, intimidation, or coercion,

– If the content, conditions, or obligations of the disposition are contrary to law or morality,

– If the disposition was made without adhering to the forms prescribed by law.”

Regarding the right to file a cancellation lawsuit, Article 558 of the TMK states: “A cancellation lawsuit can be filed by the heir or the will creditor who has an interest in the cancellation of the disposition.” As inferred from the article, if the testator was not of full capacity when making the disposition, the heirs may seek the cancellation of the transaction.

Inheritance Contract Related Sample Supreme Court Decisions:

Inheritance Contract The renunciation of inheritance contract is an agreement between the testator and the heir concerning the heir’s waiver of the inheritance rights. If the heir enters into an agreement with a third party or another heir regarding this matter, it is not a renunciation of inheritance contract but rather a transfer of inheritance rights. While it’s a requirement for the renunciation of inheritance contract to be made formally, the transfer of inheritance share contract can be made in a simple written form. For the transfer of inheritance rights over an unopened inheritance to be valid, the participation and consent of the testator in this contract are necessary under Article 678 of the Turkish Civil Code (TMK). …The voluntary partition agreement regarding …’s real estate made during …’s lifetime is invalid. Additionally, the provision of renunciation from …’s inheritance, as stated in Article 2 of the contract, is invalid because it was not formally executed by a notary. Therefore, instead of ruling against the case, the decision made in written form by the court was deemed incorrect, and thus, the decision needed to be overturned. 14th Civil Chamber 2016/10390 E., 2017/434 K.

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…A mutual partial renunciation and inheritance contract dated 07.10.2010 with the notary number 17966 made by the deceased … at the … Notary was sent to the court. The heir … indicated that the contract was not a renunciation contract but a will containing certain conditions. The heir … did not respond. The court decided that according to Article 596 of the TMK, the mutual partial renunciation and inheritance contract dated 07.10.2010 and with the notary number … made by … Notary was opened, read to the parties involved, and delivered. The heir … appealed the decision. The mutual partial renunciation and inheritance contract dated 07.10.2010 with the notary number 17966 made by … Notary is not in the form of a will. Article 596 of the TMK regulates the opening and reading of wills. There is no provision in the same Law, specifically in Article 527 and subsequent articles that regulate inheritance contracts and renunciation of inheritance contracts, regarding their opening and reading in the manner of wills. Hence, instead of ruling against the case, the decision made in written form was deemed incorrect, leading to the overturning of the decision. 14th Civil Chamber 2015/2605 E., 2015/2518 K.

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Inheritance Contract in the Turkish Legal System