Reduction Lawsuit and Reserved Portion in Inheritance under Turkish Law

REDUCTION LAWSUIT

A reduction lawsuit is a type of lawsuit that can be filed by heirs who have a reserved portion when these rights are violated. The reduction lawsuit grants the right to heirs who have not received their reserved portions to demand the reduction of the parts that exceed the disposable portion of the estate, which the testator can transfer or donate. Additionally, in cases where a lawsuit is filed against heirs with reserved portions, they have the right to assert their claims through a defense. The rules regarding the shares of statutory heirs, unless otherwise understood from the disposition of the testator, are binding only as distribution rules. If reduction is not asserted as a claim, the acts and transactions exceeding the reserved portions, which include the reserved portions of the testator, will continue to be valid. In this context, the will of the testator in the opposite direction will not affect the protection granted to heirs with reserved portions by the legislator, and upon request, the dispositions violating the reserved portion may be partially or wholly annulled by the judge with retroactive effect to the extent of the testator’s freedom of disposition.

WHAT ARE THE CONDITIONS OF A REDUCTION LAWSUIT?

A reduction lawsuit is a request to reduce the violation that occurred as a result of the testator using his freedom of disposition, including the reserved portions, over the estate. As clearly understood, two conditions must be met for this lawsuit to be filed:

The presence of dispositions exceeding the portion of the estate the testator can dispose of,

The heirs with reserved portions not receiving their reserved portions.

1. DISPOSITIONS EXCEEDING THE PORTION OF THE ESTATE THE TESTATOR CAN DISPOSE OF

The legislator has limited the testator’s freedom of disposition over his property to protect his descendants, parents, and spouse, if any. Regarding what constitutes the portion that the testator can dispose of, generally, net estate will be determined by calculating the value of the estate at the date of death, deducting liabilities from assets, and adding the gratuitous acquisitions subject to equalization explicitly listed in the law, the inter vivos acquisitions subject to reduction, and the purchase price of life insurance. Following this calculation, the total of the reserved portions will be subtracted to determine the limit of disposition.

Determination of the Assets and Liabilities of the Estate

The estate includes the property rights, claims, other property rights, possession over movable and immovable properties, and debts of the testator upon his death. The heirs acquire the estate as a whole by law upon the death of the testator. It is important to emphasize that the estate includes both the assets and liabilities of the testator, and the method of subtracting liabilities from assets should be used in calculating the net estate. While the assets of the testator consist of movables and immovables, money, claims, valuable papers, intellectual and industrial rights, and partnership shares, the liabilities include the testator’s debts, funeral expenses, expenses of sealing and writing the estate, and three months’ living expenses of those who were living with and cared for by the testator. In determining the disposable portion for filing a reduction lawsuit, the calculation will be based on the state of the estate at the date of the testator’s death, and foreign currency claims, bonds in the stock market, etc., will be evaluated at their value on the date of the testator’s death.

Testator’s Dispositions Subject to Equalization

Legal heirs are obliged to return the gratuitous acquisitions they obtained from the testator on account of their inheritance shares to the estate to ensure equalization. Acquisitions made by the testator to his descendants, such as dowry or establishment capital, or the transfer of property or discharge of debt without consideration, unless explicitly stated otherwise by the testator, are subject to equalization.

Testator’s Inter Vivos Dispositions Subject to Reduction

While the testator’s testamentary dispositions are subject to reduction, certain rules have been established for gratuitous inter vivos dispositions, and inter vivos dispositions will be added to the estate in the calculation of the disposable portion to the extent they comply with these rules. The testator’s inter vivos dispositions subject to reduction are as follows:

– Gratuitous acquisitions made by the testator to a legal heir who lost the status of heir, acquisitions made by transferring property or discharging debt to descendants without return, or unusually given dowry and establishment capital.

– Acquisitions made for the purpose of settling inheritance rights before death.

– Donations made by the testator reserving the right to revoke freely and donations made within one year before death, excluding customary gifts.

– Explicit acquisitions made by the testator to circumvent the rules of reserved portions.

Life Insurance Purchase Value

If the testator enters into a life insurance contract in favor of a third person to be paid upon his death or appoints such a person as a beneficiary later, or transfers his right to claim against the insurer gratuitously to a third person inter vivos or testamentarily, the insurance claim will be added to the estate at its purchase value at the time of the testator’s death.

2. FAILURE OF HEIRS WITH RESERVED PORTIONS TO RECEIVE THEIR RESERVED PORTIONS

The second condition required for a reduction lawsuit when the testator exceeds the limit of disposition is that the heirs, due to the testator’s act, fail to receive their reserved portions. These conditions must be present together, and the causal link between the two conditions is the essential element of the right to file a reduction lawsuit. Accordingly, the heirs’ failure to receive their reserved portions must be caused by the testator exceeding the limit of disposition and not by any other reason. Another important issue is that the heir intending to file a reduction lawsuit must have failed to receive his reserved portion, and an heir who has obtained this portion as a result of the testator’s dispositions does not have the right to file a lawsuit.

WHO ARE THE PARTIES TO A REDUCTION LAWSUIT?

Who Are the Plaintiffs with Reserved Portions?

The legislator has granted an inviolable and untouchable inheritance right to some of the legal heirs through the reserved portion rule. This right, granted by the legislator, is called the reserved portion (mahfuz hisse). Heirs who are granted a reserved portion are referred to as heirs with reserved portions. The right of an heir with a reserved portion is strengthened independently of the testator’s will. The testator cannot engage in transactions that eliminate the rights of heirs with reserved portions over the reserved portion. Heirs with reserved portions may demand and file a lawsuit to eliminate such encroachments and complete their reserved portions after the death of the testator. The reserved portion, which is excluded from the testator’s freedom of disposition and specially protected by the legislator as a mandatory inheritance share, is the reserved portion, and heirs with mandatory inheritance shares are heirs with reserved portions.

The heirs with reserved portions and their reserved portion rates are as follows;

1. The reserved portion of children is half of the legal inheritance share.

2. The reserved portion of parents is one-fourth of the legal inheritance share.

3. The reserved portion of the spouse is the entire legal inheritance share if he/she inherits together with descendants or the parents, and three-fourths of the legal inheritance share in other cases.

The testator may dispose of the part of the inheritance that is not reserved portions through testamentary disposition. If none of these heirs exist, the testator may dispose of the entire inheritance. If the lawsuit is filed by only one of the heirs with reserved portions, the calculation will be made considering all the reserved portions, but the reduction will be made only in proportion to the reserved portion of the heir who filed the lawsuit.

Who Is the Defendant in a Reduction Lawsuit?

In a reduction lawsuit, the defendant is the person or persons for whose benefit the shares were violated and transferred. This could be a third person or an existing heir, and if these persons have passed away, the lawsuit can be directed to their heirs. If the acquisitions corresponding to the reserved portion have been made in favor of multiple persons, there is no obstacle for each to be a defendant, and the plaintiff may decide against whom to assert the reduction claim.

WHICH COURT IS COMPETENT IN A REDUCTION LAWSUIT?

The competent court in a reduction lawsuit filed by heirs with reserved portions is the civil court of first instance.

WHICH COURT HAS JURISDICTION IN A REDUCTION LAWSUIT?

Inheritance proceedings are conducted at the court in the place of residence of the deceased person for the entire estate. Lawsuits regarding the annulment or reduction of the testator’s dispositions, the distribution of the inheritance, and inheritance claims are heard at this court.

LIMITATION PERIOD AND PRESCRIPTION IN REDUCTION LAWSUITS

The right to file a reduction lawsuit expires one year from the date the heirs learn that their reserved portions have been violated and in any case, ten years after the opening date of wills and the opening date of the inheritance for other dispositions. If the annulment of a disposition ensures the effectiveness of a previous one, the periods start from the date of finalization of the annulment decision.

For more help or consultation on this topic, please contact us.