What is the Statutory Rejection of Inheritance in Turkish Law?

DECLARATION OF INHERITANCE BY COURT DECISION: LEGAL FRAMEWORK AND APPLICATION

The concept of “declaration of inheritance by court decision,” which is significant in inheritance law, is detailed between articles 605 and 618 of the Turkish Civil Code. This concept refers to a legal regulation that allows heirs to reject the inheritance. This article will examine the fundamental principles and application processes of the declaration of inheritance by court decision.

The inheritance opens with the death of the testator, and the heirs are individuals with the status of heirs of the deceased according to the principle of universal succession. The principle of universal succession means that an entire estate passes to the heir through a single legal event without separate transactions. In cases of multiple heirs, joint ownership of the inheritance arises, and the heirs collectively hold the rights until the inheritance is divided.

Article 605 of the Turkish Civil Code states that legal and appointed heirs can reject the inheritance. Legal heirs are individuals determined by law, while appointed heirs are those whom the testator designates as heirs through a testamentary disposition. These individuals do not need to take any action to gain heirship status.

The rejection of inheritance is made verbally or in writing to the peace court. The declaration of rejection must be unconditional. The declaration is recorded by the peace court of the place where the inheritance is opened. This declaration constitutes the exercise of a right that results in nullity. A rejection declaration made within the time limit is recorded in a special registry by the peace court, and a document is provided to the rejecting heir upon request.

ACTUAL REJECTION OF INHERITANCE AND DECLARATION OF INHERITANCE BY COURT DECISION

The actual rejection of inheritance is made by a unilateral declaration of will by the heir. Actual rejection, according to Article 609 of the Turkish Civil Code, must be made verbally or in writing to the peace court and within three months. This period is peremptory and considered ex officio by the court. Declaration by court decision, however, refers to the rejection of inheritance without any declaration of will under certain conditions.

Conditions for declaration by court decision include the evident or officially determined insolvency of the testator at the time of death. In this case, the inheritance is deemed rejected. Since the declaration by court decision is not subject to a specific period, no declaration of will is required. However, heirs have the right to prove otherwise.

The declaration of inheritance by court decision is a legal concept detailed in the Turkish Civil Code. This regulation, aimed at protecting heirs within the legal framework, clarifies the cases of actual and court-declared rejection of inheritance. Understanding and applying this concept in inheritance law is crucial for protecting the rights of heirs.

CONDITIONS AND POSSIBLE LAWSUITS RELATED TO DECLARATION OF INHERITANCE BY COURT DECISION

The declaration of inheritance by court decision is subject to conditions set forth in the Turkish Civil Code.

CONDITIONS FOR DECLARATION BY COURT DECISION

1. Insolvency of the Testator at the Time of Death

The insolvency of the testator at the time of death is not the same as the estate being overburdened with debt. An estate overburdened with debt means the liabilities exceed the assets. However, if the testator is continuously insolvent, the inheritance can be declared rejected. It is essential to ensure that this situation is not a temporary financial difficulty.

2. Evident or Officially Determined Insolvency of the Testator

The insolvency of the testator must either be evident or officially determined. Evident insolvency means that the testator’s financial situation is known to those around them. Official determination can be achieved through a certificate of insolvency issued as a result of enforcement proceedings. This situation means that the testator’s insolvency has been officially determined.

3. Heirs Have Not Explicitly or Implicitly Accepted the Inheritance

Heirs who wish to reject the inheritance by court decision must not have previously explicitly accepted the inheritance or engaged in behavior that implies acceptance. For example, using, selling, or transferring the assets of the inheritance, paying the debts of the inheritance, or actively participating in the management of the estate could imply acceptance.

COMPETENT AND AUTHORIZED COURT FOR DECLARATION OF INHERITANCE BY COURT DECISION

Competent Court

The competent court for the case is the court of the defendant’s place of residence at the time of the lawsuit. However, this jurisdiction is not mandatory.

Authorized Court

The authorized court, regardless of the amount of the claim, is the Civil Court of First Instance.

PERSONS ENTITLED TO FILE A LAWSUIT FOR DECLARATION OF INHERITANCE BY COURT DECISION

The fact that the testator is insolvent or the estate is overburdened with debt at the time of death is not sufficient alone for filing a lawsuit for the declaration of inheritance by court decision. This situation must be evident or officially determined. The relevant person can always file a declaratory lawsuit as long as their legal interest continues. The heir who files this lawsuit can use the obtained decision as a defense against possible proceedings or lawsuits.

While an actual rejection lawsuit can be filed without an opponent, a lawsuit for declaration of inheritance by court decision is filed against the creditors of the estate. In this case, the plaintiffs are the heirs who wish to reject the inheritance.

The declaration of inheritance by court decision is a legal process subject to specific conditions. Heirs can file a lawsuit for the declaration of inheritance by court decision if these conditions are met. The competent and authorized courts are determined, and the individuals entitled to file a lawsuit for the determination of the testator’s insolvency are specified. In this context, a careful legal process must be followed in lawsuits related to the declaration of inheritance by court decision.

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COURT OF CASSATION DECISIONS REGARDING DECLARATION OF INHERITANCE BY COURT DECISION

“Article 605/1 of the Turkish Civil Code regulates ‘actual rejection,’ while article 605/2 regulates ‘declaration by court decision.’ According to article 605/1 of the Turkish Civil Code, inheritance can only be rejected within three months. (TMK article 606) This lawsuit can be filed without an opponent. The competent court is the peace court. Declaration by court decision is not subject to a period. In a lawsuit requesting declaration by court decision, the debt of the estate, the identity of the creditors of the estate, and explanations should be made, and the lawsuit should be directed to the creditors, evidence should be presented to the parties, and the active and passive assets of the estate should be determined, and a decision should be made accordingly. In the concrete case, it is understood that the plaintiffs, within three months from the death of the testator, filed a lawsuit for unconditional rejection of the inheritance without an opponent and without specifying the value of the lawsuit, as stipulated in article 605/1 of the Turkish Civil Code, and demanded the actual rejection of the inheritance as required by article 606 of the Turkish Civil Code.” (COURT OF CASSATION 20th CIVIL CHAMBER 2016/3386 E., 2016/5323 K.)

“According to the Court of Cassation Unification Decision dated 23.12.1942 and numbered 24/29, the competent court in lawsuits for the declaration of inheritance by court decision is determined based on the amount of the debt. In article 2 of the Code of Civil Procedure No. 6100, which came into force before the date of the lawsuit, it is stipulated that the competent court for determining and deciding whether the civil court of peace or the civil court of first instance is competent, regardless of the value and amount of the subject of the lawsuit, is the civil court of first instance, unless otherwise regulated in the law. Since there is no contrary regulation in the law on this matter, after the entry into force of the Code of Civil Procedure, the competent court in lawsuits to determine that the estate is overburdened with debt, ‘declaration of inheritance by court decision,’ regardless of the value of the lawsuit, is the civil court of first instance. In this case, the dispute must be resolved and concluded in the Civil Court of First Instance.” (COURT OF CASSATION 20th CIVIL CHAMBER 2015/16253 E., 2016/2200 K.)

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