The Execution of a Will in Turkish Law
What is the Execution of a Will?
The execution of a will refers to the fulfillment of the obligations necessary for the realization of the testamentary dispositions contained within the will.
In practice, the execution of a will, also known as “the fulfillment of a will” or “the enforcement of a will,” is essentially a type of lawsuit filed to determine that the testamentary disposition is not subject to any objections.
With a lawsuit for the execution of a will, it is determined whether there are any objections to the will and whether these objections are invalid. In addition to this request, the implementation of the will is also generally requested within the same legal process.
What Are the Conditions for a Lawsuit for the Execution of a Will?
A Specific Asset Must Be Bequeathed
Bequeathing a specific asset can be for the purpose of granting ownership or usufruct rights over all or part of the estate to an individual.
At the same time, it can also occur in various ways such as committing a certain value of the estate to a person, providing a periodic income, or exempting them from a debt. This obligation can be ensured through heirs or those bequeathed specific assets. For example, the will may impose an obligation on legal heirs to pay a portion of the rent receivable from an immovable property to the designated person.
The value addressed in the will can be a specific apartment or similar unit in an immovable property for which condominium or property rights have not yet been established. The plaintiff can also apply for the execution of such a will. According to the Supreme Court’s view, in this case, the plaintiff’s request also includes the establishment of condominium rights.
The Will Must Be Legally Valid
For the execution of a will, there must be a valid testamentary disposition. In this context, it is important that the will has not been annulled.
The annulment of a testamentary disposition is subject to certain time limits; these time limits include 1, 10, and 20-year forfeiture periods.
An annulment lawsuit can be filed within 1 year from the date the plaintiff learns of the disposition, the reason for annulment, and their own entitlement.
In any case, after 10 years from the opening date of the will against good faith defendants and 20 years against bad faith defendants, this right is forfeited (TMK. m. 559/I).
What Are the Conditions for the Annulment of a Will?
What is the Lawsuit for the Annulment of the Rejection of the Inheritance?
The Will Must Be Opened
The opening of a will means that this document is presented to the relevant court and read by a judge in the presence of the heirs. The Justice of the Peace opens the will on the appointed date. Then, it ensures that this opening and reading is recorded in a protocol. Finally, it requests the recorded protocol to be signed by those present.
Additionally, if necessary, it provides an inheritance certificate to the heirs and may temporarily transfer the assets included in the estate to the legal heirs.
In the opening of the will, the duty of the Justice of the Peace is only related to the opening of the will. Matters related to the validity or execution of the will are within the jurisdiction of the Civil Court of First Instance.
Who is the Legatee?
A legatee is a natural or legal person who claims an asset or benefit left to them by a will. A legatee can only claim the asset or benefit left by the will.
They are neither an heir nor a universal successor. In other words, a legatee does not directly acquire ownership or rights over the asset or benefit subject to the will upon death. However, for the fulfillment of the bequest, they become a creditor against the heirs.
Execution of a Will
How Are Bequests Fulfilled?
Transfer of Immovable Property
When an immovable property or a limited real right is bequeathed or established by a will, the transfer or establishment of this property or right becomes valid only when it is registered in the land registry according to the real system and registration principle accepted by the Civil Code (MK m: 633).
If the registration is not done, the heirs under the obligation of the will acquire the ownership of this immovable property or other limited real rights. In the process of fulfilling the will, if there are multiple heirs, the debtor of the will is liable to all heirs. However, after the inheritance is divided, the heir to whom the property or right has passed is the debtor of the will.
If the ownership of an immovable property or a limited real right is specified in the will, after the death of the testator, this property must first be registered in the land registry in the name of all heirs forming the inheritance community. If this registration does not occur, the heirs cannot perform any gainful transaction or request registration.
3rd Civil Chamber 2013/20723 E., 2014/5676 K. (…) From the examination of the file; it is understood that this handwritten will is in accordance with the procedure, the lawsuit for the annulment and reduction of the will filed by the defendants was rejected and the decision became final, thus, there is a valid and enforceable will.
However, without considering the content of this will by the court, it was registered in the land registry in the name of all heirs as if there was no such will (…)
After the immovable property specified in the will is registered in the land registry, the registration process can be carried out only for the legatee requesting the fulfillment of the will. In this case, the registration process is accepted as a legal reason for the will and all heirs forming the inheritance community must apply together for registration under this legal reason.
How is the Registration of the Execution of a Will in the Land Registry Done?
Heirs’ Requests:
Request for Registration by Legal Heirs: Legal heirs can request an inheritance certificate after the will is opened and read and a decision is made for its execution. This document includes the name of the appointed heir and legal heirs can request the transfer process from the Land Registry Directorate. With this process, the ownership of the immovable property passes in the form of joint ownership and joint ownership provisions are applied.
Request for Registration by Appointed Heirs: Appointed heirs can request an inheritance certificate from the judge after the decision for the execution of the will is made. If there are multiple heirs, each can obtain a separate document and apply to the Land Registry Directorate for the transfer process. The transfer process is usually carried out in the form of joint ownership and only an inheritance certificate is required.
Request for Registration on Behalf of the Legatee of a Specific Asset: An inheritance certificate is not issued to a legatee because they are not an heir. Only a specific asset is left to them and they are a legatee. They can request registration from other heirs or the executor of the will. As there is no inheritance certificate, the registration request is made directly by the legatee.
Registration Requests by the Legatee:
Requested by Heirs or Executor of the Will: Heirs or the executor of the will can register the asset on behalf of the legatee. They can apply to the land registry directorate with
the necessary documents to carry out this process.
Requested by the Executor of the Will: The executor of the will can register the asset on behalf of the legatee and submit the necessary documents. As the legatee is liable for the fee, the fee assessment is made in their name.
Registration Request by the Legatee Themselves: If the heirs or the executor of the will do not request it, the legatee can apply to the court for a letter for registration. With this letter given by the judge and the necessary documents, they can apply to the land registry directorate and complete the registration process.
How is Registration in the Land Registry Information System (TAKBIS) Done?
The Land Registry and Cadastre Information System (TAKBIS) is a platform aimed at digitizing the land registry process to manage it more quickly and effectively. The necessary documents and procedures for registering in the land registry via TAKBIS are as follows:
Required Documents and Explanations:
1- Identity Document: Identity documents of the legatee or their authorized representatives.
2- Relevant Documents if Representation Exists: Power of attorney, authorization document, etc. related to the representation.
3- Photograph: 1 passport-sized photograph (6*4 dimensions) for each natural person.
4- Mandatory Earthquake Insurance: For immovable properties with building characteristics.
5- Property Declaration Value Document: Issued by the municipality where the property is located.
Processing Steps:
1- Creating an Application: An application is created for the relevant application and necessary information is entered.
2- Monitoring the Application: The status of the application is monitored using the application monitor by the relevant personnel.
3- Identification of Parties: The identity of the parties is verified by selecting the property involved in the transaction.
4- Tax and Fee Control: Taxes and fees determined by law are controlled.
5- Control of Annotations, Statements, and Easements: Annotations, statements, and easements on the property are controlled.
6- Mortgage Control: Existing mortgages on the property are controlled.
7- Obtaining Additional Information for Registration: Declaration value of the property is entered.
8- Obtaining Information for Registration Basis: The share on the property is entered.
9- Connection with Other Transactions: Options related to other transactions such as establishing a usufruct right or right of residence are provided.
10- Tax and Fee Transactions: Tax and fee transactions related to the process are carried out.
11- Registration Request Document: Official deed or Registration Request Document is created.
12- Process Control: Data entries made during the process are controlled.
13- Journal: The journal number related to the process is obtained.
14- Registration: The system automatically carries out the registration stage.
15- Reports and Documents: Reports and documents related to the process are prepared.
16- Archive: The documents used in the process are archived.
The process is completed after these stages.
Transfer of Movable Property
If the delivery of a movable property specified in the will is in question, it is usually delivered to the legatee. However, the method of delivery may vary depending on the type of will. The legatee requests the delivery of the property from the heirs who are required to fulfill this obligation. If the property is not voluntarily delivered to them, the legatee either files a lawsuit based on the will to ensure delivery or directly requests the delivery of the movable property through general seizure with the help of an enforcement officer.
What is a Reduction Lawsuit and Reserved Portion in Inheritance?
What is an Equalization Lawsuit in Inheritance?
Transfer of Debt Rights
Until the transfer of the debt occurs, the debt subject to the bequest is legally transferred to the heirs of the testator who is the debtor of the will. Although the testator requested the transfer of the debt right to the person specified in the will before their death, if the debtor of the will did not carry out this transfer, the legatee can file a legal lawsuit against the debtor of the will under Article 164 of the Code of Obligations, requesting the transfer of this debt (judicial assignment) from the court.
Who is the Plaintiff in a Lawsuit for the Execution of a Will?
In a lawsuit for the execution of a will, the plaintiff is the legatee. The person requesting the execution of the will must be capable of inheriting and alive. If the legatee dies before the testator, the same lawsuit can be initiated by the legatee’s own heirs.
However, if a person who is not a legatee files a lawsuit regarding the execution of the will, the court does not make a decision on the merits of the case. The lawsuit is dismissed due to the lack of legal interest.
What is Disinheritance?
What is an Inheritance Certificate and How to Obtain It?
Which Court is Competent and Authorized in a Lawsuit for the Execution of a Will?
The lawsuit for the execution of a will is a type of lawsuit related to property rights. The competent court is the Civil Court of First Instance, regardless of the value of the subject matter. The relevant court for the procedures related to the opening and reading of the will is the Magistrate’s Court. However, it is generally accepted in practice that both lawsuits cannot be heard together. According to some opinions, the duty of the magistrate is only limited to the opening of the will and does not have the authority to make decisions on enforcement.
In the lawsuit for the execution of a will, the court of the last residence of the testator has jurisdiction and this court has exclusive jurisdiction. With the regulation in TMK. m. 576/II, it is envisaged that inheritance matters should be conducted by a single court, independently of the location of the inheritance properties. For example, this lawsuit cannot be filed in the court where the immovable property is located.
Examples of Supreme Court Decisions on Lawsuits for the Execution of a Will
Execution of a Will
(…) In the lawsuit petition, the plaintiff’s attorney stated that the plaintiff’s testator Emine bequeathed her property to the plaintiff with a will dated 21.05.1999 and that the lawsuit filed in the Magistrate’s Court for the opening and reading of the will was considered not to have been filed due to lack of follow
-up, requesting the execution of the will dated 21.05.1999.
The defendants’ attorney stated in their response that they did not accept the will.
The court ruled that the lawsuit for the execution of the will could not be filed without the precondition of opening and reading the will, and that the lawsuit was dismissed due to the lack of legal interest as explained in Article 114/h of the Civil Procedure Code (HMK) and Article 115 of the HMK, and the plaintiff’s attorney appealed the decision.
It is understood that the will dated 21.05.1999, prepared by the parties’ testator Emine, was bequeathed to the plaintiff niece, and that the lawsuit filed in the Magistrate’s Court on 13.08.2007 for the opening and reading of the will was considered not to have been filed due to lack of follow-up by the plaintiff H.. Y.. and that no notification was made to some of the heirs.
For the execution of a will (fulfillment), it is necessary that the will subject to the lawsuit is not subject to any objections, and if objections have been made, that the annulment lawsuit has been dismissed, in other words, that the will has become final. For this purpose, all heirs must be informed of the will and the lawsuit for the opening and reading of the will must be finalized to start the forfeiture periods.
In the case, since the lawsuit for the opening and reading of the will was considered not to have been filed due to lack of follow-up, there is no precondition for filing a lawsuit for execution.
In this case, the reason stated in the court’s decision, that the lawsuit was dismissed due to the lack of legal interest as explained in Article 114/h of the Civil Procedure Code (HMK), should be changed to the reason that the lawsuit was dismissed due to the lack of precondition for filing a lawsuit as explained in Article 114/2 of the Civil Procedure Code (HMK) and the decision should be upheld, and the attorney’s fee of 1.100 TL determined according to the provisions of the Attorney’s Minimum Wage Tariff in force at the date of the hearing should be collected from the plaintiff and given to the defendants, and the remaining appeal fee of 2.50 TL should be charged to the appellant, and it was unanimously decided on 08.12.2015. 3rd Civil Chamber 2015/3636 E., 2015/19881 K.
In the lawsuit petition, the plaintiffs’ attorney stated that the testator H. T. bequeathed 6 properties to the plaintiffs’ testator M. T. with a will dated 10.02.1994, and requested the registration of the properties in the name of the plaintiffs with the execution of the will by stating that the will was finalized with the file for the opening and reading of the will.
It is understood that the will in question was prepared on 10.02.1994, the testator H. T. died on 14.03.1995, the will was read by the Magistrate’s Court with the decision dated 22.05.1995, and this lawsuit was filed on 03.04.2012.
Upon the appeal of the plaintiffs’ attorney against the first decision of the court dated 20.06.2012, which dismissed the lawsuit on the grounds that it was not filed within the 10-year period, our Chamber overturned the decision with the decision dated 14.01.2013, stating that “Since the testator H. T. died on 14.03.1995, the period stipulated in Article 580 of the Civil Code No. 743 in force is not a forfeiture period but a prescription period, and since the defendants did not raise a defense of prescription, a decision should be made on the merits of the lawsuit.” The court, complying with our Chamber’s decision, accepted the lawsuit on 08.05.2013, canceled the land registry records, and decided to register the properties in the name of the plaintiffs’ testator. Upon the appeal of this decision by the defendants’ attorney, our Chamber overturned the decision with the decision dated 03.12.2013, stating that “A judgment cannot be based on any document such as a lawsuit petition, expert report. In the judgment read and determined by the record, as well as in the reasoned judgment, shares were not shown, and the reasoned judgment referred to the inheritance certificate. Therefore, it was not deemed correct to make a judgment that would create doubt in execution.” The court, complying with our Chamber’s decision, decided on 24.06.2014 to accept the lawsuit, accept the will of the testator regarding the entire inheritance share of the testator as 6 shares, and decide on the execution in such a way that the shares of K. T. (K.) 1/6, F. T. (D.) 1/6, Ş. T. (Assistant) 1/6, A. T. 1/6, C. T. 1/6, A. T. (K.) 1/6 should be registered in the name of the plaintiffs, and the decision was appealed by the defendants’ attorney.
It is understood that the properties bequeathed by the testator H. T. to the plaintiffs’ father M. T. are parcels numbered 74, 65, 1, 14, 679, 29, and that these parcels were not detailed in the judgment section.
According to Article 388 of the Civil Procedure Code (Article 297 of the Code of Civil Procedure); the rights and obligations imposed on the parties with the judgment created at the end of the lawsuit must be clear and enforceable. The judgment decided only on the execution of the will and the registration of shares as 1/6, and it was not deemed correct that the parcels of the properties to be registered were not specified in the judgment.
A lawsuit for the execution of a will is related to determining that the will has not been objected to or that the objections have been dismissed, and the decision to execute the will itself does not provide for the transfer of a real right.
The legatee who is bequeathed a specific asset has a personal right to claim against the executor of the will if there is one, or against the legal or appointed heirs if there is no executor of the will.
In this case, while deciding on the execution of the will, the court should have specified the parcels involved in the will separately, and decided on the execution of the will with the registration of the properties in the village of ………., parcel numbers 119/74-109/65-158/1-154/14-121/679 and 120/29 in proportion to the plaintiffs’ inheritance shares, instead of making a judgment without specifying the parcel numbers in the judgment section.
CONCLUSION: Considering the principles explained above, it was not deemed correct to make a judgment in the written manner, the appeal objections were accepted for these reasons, the judgment was overturned pursuant to Article 428 of the Code of Civil Procedure, and the prepaid appeal fee was refunded to the appellant upon request, and it was unanimously decided on 24.02.2015. 3rd Civil Chamber 2014/22023 E., 2015/2921 K.
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