Invalidation of a Will and Conditions in Turkish Law
INVALIDATION OF A WILL AND ITS CONDITIONS
The important point regarding the invalidation of a will is that the rules governing the creation and implementation of wills are limited to those specified in the law, and a will can only be invalidated if it violates the reasons stated in the law and detailed above. However, the presence of invalidation reasons does not automatically invalidate the provisions and consequences of a will. In order to challenge the validity of a will, the invalidation reasons must be raised in a lawsuit, and the judge will not consider other invalidation reasons on their own initiative without the request of the parties. The lawsuit may be related to the cancellation of the entire testamentary disposition or a part of it.
UNDER WHAT CONDITIONS DOES A WILL BECOME VOID IN TURKISH LAW?
The invalidation or voidance of a will is only possible in two cases. These are conditions regulated by the provisions of the Turkish Civil Code, and the first one constitutes the automatic voidance sanction when the required conditions set by the law are fulfilled, while the second case leads to the consequence of cancelability. Since the last wishes and intentions of the testator are important in testamentary dispositions, the reasons that result in automatic voidance have been treated differently from the absolute nullity reasons in the law of obligations and have been specifically regulated. The cases in which a will becomes automatically void according to the law are as follows:
1. Divorced spouses cannot be each other’s legal heirs by virtue of their divorce, and they lose the rights granted to them through testamentary dispositions made before the divorce, unless otherwise stipulated. With the finalization of the divorce decision, the wills made by the spouses in favor of each other automatically become void unless otherwise agreed.
2. If the person for whom the testamentary disposition is made dies before the testator, in such a case, the will becomes automatically void.
3. Since the condition of disinheritance arises for individuals who commit the listed actions, testamentary dispositions made in their favor become automatically void unless forgiven by the testator:
-Those who intentionally and unlawfully kill or attempt to kill the testator
– Those who permanently disable the testator from making testamentary dispositions by intentionally and unlawfully causing their death
– Those who induce or prevent the testator from making a testamentary disposition or revoking such a disposition through deception, coercion, or intimidation
– Those who intentionally and unlawfully eliminate or invalidate a testamentary disposition at a time and under circumstances where the testator can no longer make a disposition
4. If the testator, due to extraordinary circumstances such as imminent death, transportation disruption, illness, war, is unable to make an official or handwritten will, and if there is a possibility for the surviving testator to make a will in another form after overcoming the situation, a verbal will becomes automatically void one month after this date.
The mentioned cases are specifically regulated as cases of automatic absolute voidance, and in addition to these, as explained above, there are also cases of cancelability. The cases of cancelability are limited to the reasons specified by law, and it is not possible to request the cancellation of a will based on other grounds. As mentioned, if the heirs do not raise cancellation reasons, the will continues to produce its legal effects. The reasons not raised by the heirs will depend on the request and cannot be considered by the judge on their own initiative.
WHAT ARE THE GROUNDS FOR INVALIDATION OF A WILL?
The following grounds can be the basis for filing a lawsuit for the invalidation of a testamentary disposition:
– If the will was made at a time when the testator did not have testamentary capacity
– If the will was made as a result of error, deception, intimidation, or coercion
– If the content, conditions, or burdens of the will are contrary to law or ethics,
– If the will is made without complying with the prescribed forms in the law.
It should be emphasized that the grounds for cancellation are limited in number and the cancellation of the will cannot be requested unless these grounds exist.
1. Lack of Testamentary Capacity
For a legal act to be valid and enforceable, the parties involved must have the necessary capacity to participate in that act. The Turkish Civil Code divides capacity into legal capacity and act capacity. Legal capacity refers to the ability of natural and legal persons to have rights and obligations within the legal system. Act capacity refers to the ability of natural and legal persons to acquire rights or assume obligations through their own actions.
In the unilateral legal act of a will, the person making the will must meet certain conditions specified by law. These conditions include being at least 15 years old and having the capacity to discern. Fully capable individuals and individuals with limited capacity face no obstacles in making a will, while minors with discernment capacity who have reached the age of fifteen can make a will. The right to dispose of property upon death is a personal right, and individuals under the age of fifteen cannot make a will even with the consent of their legal representatives.
Capacity to Discern
Capacity to discern refers to an individual’s ability to understand the meaning, nature, legal consequences, and results of their actions and act accordingly. Capacity to discern should be assessed separately for each legal act. Anyone who is not deprived of the ability to act in a reasonable manner due to their young age, mental illness, mental weakness, drunkenness, or similar reasons has the capacity to discern. Therefore, if there are circumstances where the scope and consequences of the will cannot be evaluated and the results cannot be anticipated, it cannot be said that there is capacity to discern, and this is a condition that needs to be evaluated in the specific case. Every mental illness or weakness does not indicate a lack of capacity to discern. In cases where a claim of lack of capacity to discern is made, the burden of proof lies with the party claiming that capacity to discern is present despite mental illness or weakness.
The testator must have capacity to discern at the time the will is made.
Cancellation of the Will at the Age of Fifteen
Testamentary capacity requires reaching the age of fifteen. In order for a will to be valid, the requirement is that the person making the will has reached the age of fifteen at the time of making the will. Considering the age of majority as eighteen years old, the requirement of reaching the age of fifteen is deemed sufficient due to the nature of the right to make a will as a personal right and the ease of fully revoking a will at any time.
2. Making a Will as a Result of Mistake, Fraud, Coercion, or Duress
Another reason for invalidating a will is if it is created under the conditions of mistake, fraud, coercion, or duress, which are considered forms of impaired will. A testamentary disposition made by the testator under the influence of mistake, fraud, coercion, or duress is invalid. However, if the testator learns of the mistake, fraud, coercion, or duress and does not revoke the disposition within one year from the day of becoming aware or being freed from the influence of coercion or duress, the disposition will be considered valid.
A valid will is defined as an expression of intent that is created free from external influences and is oriented towards the desired outcome. Based on this definition, two types of impaired will can be mentioned during the process of making a will: impairments in the formation of intent known as error in motive, and impairments occurring through mistake, fraud, or coercion during the declaration of intent. This inconsistency can be a result of intentional manipulation by one party or unintentionally arise. It is important to note that these impairments of will must occur at the time of making the will.
If the testator does not revoke the disposition within one year from the day of becoming aware of the mistake, fraud, coercion, or duress or being freed from their influence, the provisions stated in the will become effective, and after the testator’s death, the heirs cannot challenge the revocation of the will. However, if the testator dies within the one-year period without revoking the will after the cessation of deception, threats, or influence, the provisions in the will do not constitute a valid disposition. In this case, the heirs can still challenge the revocation of the will within one year from the testator’s death.
There can be two types of mistake. The first type occurs when the statement does not correspond to the intended will, and the second type occurs when there is a mistake related to the factors that caused the formation or non-formation of the will. Regardless of the type of mistake, if a testamentary disposition is made as a result of the mistake, and there is a causal connection between the mistake and the will, there will undoubtedly be a valid reason for invalidating the will. The fact that the testator would not have made the disposition if they were not mistaken establishes causation and demonstrates the existence of a ground for revocation. However, if a clear mistake exists in the specification of the person or object in a death-related disposition and the testator’s true intention can be ascertained conclusively, it is possible to rectify the disposition according to this intention.
Fraud refers to a set of actions with the intention of creating false beliefs in a person, either through words or actions, in order to influence their decision-making process. It is an intentional act to mislead someone. In fraud, the decision made by an individual is not a result of their free will but is under the influence of another person who intentionally deceives them. The error lies not with the deceived person but with the manipulation of the deceiver. To speak of fraud in wills, someone must have deliberately deceived the heir regarding the testator’s final dispositions. Additionally, there must be a clear connection or causal relationship between the actions or words of the deceiver and the provisions made in the will.
Coercion or Duress
Coercion involves compelling someone to initiate a legal action by convincing them that they will suffer loss or harm if they do not comply with the desired outcome. It includes using fear or threats to force someone to make a specific decision. In the context of a will, coercion manifests when a person.
3. Violation of Law or Ethics in the Content, Conditions, or Impositions of the Testament
The violation of the legality or ethics of the content, conditions, or impositions of the testament can arise from the reasoning, purpose, subject, conditions, or impositions. If such a violation exists, both the unlawful or unethical conditions can be canceled, and if conditions are established, the entire disposition can be invalidated.
Illegality refers to the violation of mandatory legal rules, rules of public order, and personal rights as stipulated in the laws. Mandatory legal rules are rules that must be strictly followed and cannot be decided otherwise. Rules of public order serve to protect the fundamental structure and interests of society, while personal rights encompass all rights related to an individual’s health, dignity, privacy, name, image, freedoms, as well as their material, spiritual, and economic welfare. Any disposition related to death that contradicts these conditions or violates public order and personal rights is considered illegal and can be invalidated.
If the testament includes dispositions dependent on multiple deaths, and some of them are illegal or unethical, the evaluation is made in two aspects: whether the entire disposition should be canceled or only the illegal parts. If it can be proven that the testator would not have made other dispositions if they were aware of the violation, and there is a clear connection between the disposition that constitutes the violation and the others, it may be possible to request the cancellation of the entire testament. However, if there is no close connection, only the illegal or unethical provisions can be canceled.
The burden of proving the illegality or immorality of the disposition lies with the person seeking its cancellation.
4. Non-compliance with the Form Prescribed by Law
In Turkish law, the process of creating a testament consists of three types: an official testament, a holographic testament, and an oral testament. A testament can only be validly drafted within the limited scope of testament types that can be made according to the law, and the consequences of not complying with the specified types of testaments will result in nullity, not cancellation. In other words, if a testament is made in a manner that does not comply with the specified types of testaments in the law, it automatically becomes void.
In dispositions dependent on death, if there is non-compliance with the formal requirements, the result will not be the complete nullity of the testament but rather its cancellation upon request. The remaining parts of the testament will remain valid and enforceable.
An official testament is prepared with the participation of two witnesses by a notary public, conciliation judge, or another authorized person designated by law. The testator (the person making the testament) informs the official about their testament, and the official writes or has the testament written for the testator to read. After the written testament is given to the testator to be read, the testator signs the testament after being sure that it contains their final wishes, and then the authorized official adds the date by signing.
The testator informs the official and the two witnesses that they contain their final wishes in the read testament. The witnesses sign the testament to acknowledge that they witnessed the testator’s statement and considered the testator authorized to make a testament. The witnesses do not need to be aware of the content of the testament. However, if the testator cannot read or sign the testament personally, the official reads the testament in the presence of the witnesses. The testator then declares that it contains their final wishes, and the witnesses sign the testament to acknowledge that they witnessed the testator’s statement and considered themselves authorized to make a testament.
In both cases, it is necessary to prove the compliance of the will with the regulations specified in the Turkish Civil Code through the signatures of the official officer, the testator, and the witnesses. The burden of proof of the legality of the will lies with the person who wishes to challenge it.
Will in Handwriting in Turkish Law
It is mandatory for the handwritten will to be written and signed by the testator from beginning to end, indicating the year, month, and day of its creation. The handwritten will can be left open or sealed and deposited with a notary public, a conciliation judge, or an authorized officer for safekeeping.
Oral Will in Turkish Law
An oral will is a type of testamentary disposition that can be made in exceptional cases when the testator is unable to make a formal or handwritten will due to specific circumstances such as imminent danger of death, transportation disruption, illness, or war.
In order to make an oral will, the testator must declare their last will to two witnesses. These witnesses must be literate and not be subject to any witness restrictions. The testator entrusts them with the task of writing down or dictating the will according to their declaration.
One of the witnesses writes down the testator’s last will, including the location, date, and time of the will, and signs the document, getting the other witness to sign as well. Subsequently, both witnesses promptly submit the written document to a conciliation court or a civil court of first instance. They declare to the judge that they have been authorized by the testator to make the will and that they have communicated the testator’s last will in extraordinary circumstances. Alternatively, the witnesses can go directly to the court and declare the testator’s final wishes to a judge, who will record them in a protocol.
It should be noted that if the testator subsequently has the opportunity to make a will in another manner, the oral will becomes invalid one month after the new will is made.
ACTION TO INVALIDATE A WILL
The rules governing the creation and implementation of wills are limited to those specified in the law, and it is important to note that a will can only be invalidated if it violates the reasons specified in the law and detailed above. However, the existence of grounds for invalidation does not automatically render the provisions and consequences of the will invalid. To contest the validity of a will, the grounds for invalidation must be raised in a lawsuit. The judge will not consider other grounds for invalidation without the parties’ request. The lawsuit may involve the cancellation of the entire testamentary disposition or a portion of it.
The purpose of an invalidation lawsuit is to create a new legal situation in favor of the plaintiff, resulting in the final decision that declares the will as if it had never been made retroactively from the moment of the testator’s death. If the person who is the subject of the disposition has already taken possession of the property, the invalidation lawsuit does not lead to the return of that property. In such a case, a separate action for entitlement arising from a different inheritance should be initiated through an inheritance lawsuit or after the invalidation lawsuit. Prior to the formal opening of the inheritance, the heirs or the beneficiaries cannot request the invalidation of the will. The testator has the right to personally revoke or withdraw the will during their lifetime. Therefore, an invalidation lawsuit can only be filed after the testator’s death.
The Parties Involved in the Cancellation Lawsuit of the Will
The plaintiff in the cancellation lawsuit of the will can be a beneficiary or a creditor of the will who has an interest in the cancellation of the will. In this context, the status of being an heir is not limited to legal heirs but also includes appointed heirs who have the opportunity to initiate this lawsuit. It should be emphasized that the plaintiff who initiates the cancellation lawsuit must prove that they have an interest in the cancellation of the disposition upon death. In the cancellation lawsuit, the person benefiting from the disposition upon death is referred to as the defendant. The defendant is the person who benefits from the contested disposition. In other words, the defendant is the individual who obtains a benefit from the inheritance as a result of the will, while the plaintiff is the person who is negatively affected by the same will and seeks its cancellation. The defendant is the person who directly benefits from the disposition upon death, while the plaintiff is the person who requests the cancellation of the disposition.
Competent Court for the Cancellation Lawsuit of the Will in Turkey
Regardless of the value and amount of the subject matter, the competent court for cases related to property rights and personal rights is the civil court of first instance, unless otherwise regulated. There is no specifically designated court for the cancellation lawsuit of the will, and in this context, the general competent court, which is the civil court of first instance, will be considered competent.
Regarding the cancellation lawsuit of the will, the court with jurisdiction is the court of the last residence of the testator, and this court has absolute jurisdiction.
What is the Time Limit for Filing a Cancellation Lawsuit of the Will?
The right to file a cancellation lawsuit expires one year from the date the plaintiff becomes aware of the disposition, the reason for cancellation, and their own entitlement, and in any case, ten years have passed from the date of the will’s execution for bona fide defendants, and twenty years have passed for defendants acting in bad faith, counting from the date of inheritance in other dispositions.
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