What is a Will? How is it Prepared?

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The testament is regulated between Articles 531 and 544 of the Turkish Civil Code No. 4721. A will is a written document in which a person determines to whom or how his/her assets and rights will be distributed after his/her death. This document expresses a person’s last wishes and dispositions regarding inheritance. In order for the will to be prepared to express a legal provision, some formal requirements are stipulated in the Turkish Civil Code No. 4721. In this article prepared by our lawyers specialized in inheritance law, we will try to find answers to questions such as “how do I leave a will?”, “what are the conditions for leaving a will?”, “to whom can I leave a will?”.

What Is A Will?

A will is an official document that provides for the sharing of the assets that a person will leave to his heirs by binding them to a certain arrangement. The person who prepares the will can change or cancel this document at any time. The subject of the will may be the distribution of material assets, as well as the person’s own special wishes such as to whom to leave the items of high moral value, how to hold the funeral, what to write on the tombstone, etc. may also be the subject of the will.

What Are The Conditions For Preparing A Will?

In order to prepare a will, 2 conditions are required.

– Having the power of discrimination

– 15 years of age or older

Having the power of discernment means the ability to comprehend the causes and consequences of one’s actions and wishes and to act accordingly. Persons who do not have the power of discernment are fully incapacitated according to the Turkish Civil Code. The power of discernment must be present at the time of the will.

As it is seen,turning 15 years of age allows the person to prepare a will without waiting for the person to become an adult.

Types Of Wills

According to the Turkish Civil Code No. 4721, there are three main types of wills:

1. OFFICIAL WILL

An official will is a type of will that is drawn up by an official officer in the presence of two witnesses. The official officer may be a magistrate, a notary public or any other official authorized by law.

An official will is made in the presence of two witnesses. Thus, it becomes official and provides the most reliable reflection of the will of the testator. Since it is issued by a notary public, the risk of the document being lost is lower.

The testator verbally declares his/her will in the presence of a notary public, a judge of the peace or another official authorized to do so. The will is then written and formalized with the signature of the parties.

2. HANDWRITTEN WILL

It must be written in the testator’s own handwriting, dated and signed by the testator; it is not valid if written by another person.

It is often preferred because it is a simpler method, but it may not be as reliable as the official will issued by a notary public.

NOTE: In a handwritten will, it is obligatory for the testator to write the date by specifying the year, month and day.

3. VERBAL WILL

It can be made in extraordinary circumstances, for example in case of emergency, such as being in danger of death, interruption of transportation, war or disaster. In this case, the testator makes his/her will verbal to two witnesses. The witnesses put the will in writing and submit it to the magistrate as soon as possible. In order for this type of will to be valid, it is important that the witnesses report the situation to the authorities as soon as possible.

NOTE: If the heir subsequently has the opportunity to make a will in other forms, the verbal will is null and void after one month has passed since that date.

All three of the above-mentioned types of wills are legally valid, but each of them has its own conditions and ways of making them. The person may choose the appropriate one according to his/her needs and current circumstances.

What Are The Preparation, Arrangement, Witnesses And Conditions Of A Formal Will?

How is a formal will prepared? The person who will prepare the will notifies the official officer of his/her wishes. The official then writes or dictates the will and gives it to the person to read. The will is read and signed by the testator.

Immediately after the official will is dated and signed, the testator declares to two witnesses in the presence of the official that he/she has read the will and that it contains his/her last wishes. The witnesses write or print on the will that this declaration was made in front of them and that they deem the heir to be competent to make a will, and sign the bottom of the will.

NOTE: It is not obligatory to inform the witnesses of the content of the will.

If the testator is unable to read or sign the will in person, the clerk reads the will to him/her in front of two witnesses, whereupon the testator declares that the will contains his/her last wishes. In this case, the witnesses write or print on the will that both the declaration of the testator was made in front of them and that they consider him to be competent to make the will, and that the will was read to the testator by the officer in front of them and that he declared that the will contains his last wishes, and they sign it.

Who can these officials or witnesses be? How are they selected? What are their obligations?

In the relevant article of the Turkish Civil Code, there are some conditions for the officer who will draw up the official will or the witnesses to be present. Let us examine these conditions in order.

– Those who lack capacity to act,

– Banned from public service by a criminal court decision,

– The illiterate,

– Spouse, lineal descendants (mother, father, grandfather, etc.) and descendants (daughter, son, grandson, etc.), siblings and their spouses

They cannot participate in the preparation of the official will as officials or witnesses.

NOTE: The official and witnesses participating in the preparation of the official will, their blood relatives by lineal descent and blood relatives by descent, their siblings and their spouses cannot be benefited by that will.

NOTE: Illiterate persons can be witnesses in the preparation of an verbal will’.

To Whom Can I Leave My Will?

A person can leave his/her inheritance to any natural or legal person he/she wishes with a will. In other words, the person to whom the person will leave an inheritance does not have to be from his/her family. It can be left to a friend, association, foundation or institution. However, it should be noted that the person can only freely dispose of the remaining part of the rights of the heirs who have a reserved share. If the person does not have a reserved share heir, then he/she can dispose of it as he/she wishes.

Another point to be considered is that the identity information (name, address, etc.) of the person to be bequeathed must be specified in detail, otherwise a dispute will arise. Likewise, the subject of the inheritance must also be carefully explained. For example, if the person leaving an inheritance uses a statement such as ‘I leave my house in Antalya to Ahmet’ in his/her will, a dispute will arise. Because if the person has more than one house in Antalya, it is not clear which house he/she means, or it is not clear which Ahmet is the Ahmet he/she bequeathed. For this reason, it is of great importance to provide detailed information.

Is It Possible To Remove An Heir Through A Will?

The ability of the heir to remove the heirs who have a reserved share is subject to certain conditions in the Turkish Civil Code. Disinheritance is possible in 3 ways:

– The heir has committed a serious crime against the heir or one of the heir’s relatives,

– The heir has significantly failed to fulfill his or her family law obligations to the heir or members of the heir’s family,

– If there is a certificate of incapacity to pay debts about the heir descendant.

In order for the disinheritance to be valid, the heir must also state the reason for this action. The testator may specify his/her request in the will he/she has prepared.

Revocation Of A Will

The testator may revoke the will he/she has prepared by complying with one of the forms set out in the Turkish Civil Code. Revocation of a will is possible in 4 ways:

– By making a new will in accordance with one of the forms prescribed by law for wills,

– By destroying it,

– By drawing up a new will that completes the previous will beyond any doubt without abrogating the previous will,

– Unless otherwise specified in the will, in a will that leaves a specific property, the testator may subsequently make a disposition on that property that is incompatible with the will.

Will Revocation And Revision Case

Article 557 of the Turkish Civil Code No. 4721 lists the grounds for the annulment of a will. The reasons in the relevant article are as follows:

– If the disposition was made at a time when the inheritor did not have the capacity to dispose,

– If the disposition was made by mistake, deception, intimidation or coercion,

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

– If the disposition was made without complying with the forms stipulated in the law.

The annulment action may be filed by the heir who has an interest in the annulment of the disposition or by the testamentary creditor. The lawsuit may be related to the annulment of the whole or part of the testamentary disposition.

The right to file an action for annulment shall lapse after 1 year from the date on which the plaintiff learns about the disposition, the reason for annulment and that he/she is the beneficiary, and in any case, after 10 years from the date of the opening of the wills, against bona fide defendants, and 20 years against non-bona fide defendants.

In the case of annulment of the will, the court in charge is the civil court of first instance and the competent court is the court of the place of residence of the heir.

If the testament exceeds the savings rate of the heir, the heirs whose reserved shares are damaged may file a lawsuit for equalization. In order to file a lawsuit for equalization due to the will, the will must first be opened and read.

In case there is more than one testamentary disposition subject to equalization, the part of the gain made to the heir with the reserved share exceeding the reserved share and the gains made to persons who do not have the reserved share are equalized proportionally.

The right to file an action for equalization shall lapse one year starting from the date on which the heirs learn that their reserved shares have been damaged, and in any case, 10 years from the date of the opening of the will in the case of wills, and 10 years from the date of the opening of the inheritance in other dispositions.

The court in charge of the equalization case is the civil court of first instance and the competent court is the court of the last place of the heir.

Opening Of The Will

The will, regardless of whether it is valid or not, shall be opened by the judge of peace at the place of residence of the testator within one month from the date of its delivery and shall be read to those concerned. The day and time of the opening shall be decided by the court of peace. The opening of the will and its announcement to the relevant parties constitutes the starting point for both the action for annulment and the action for annulment of the testamentary acts. The issue of whether the will has been opened or not comes to the agenda during the period of limitation regarding the annulment action. This is because the prescription period shall commence with the opening and reading of the will.

Enforcement Of The Will

Execution of a will means the fulfillment of the will. The subject of the case for the enforcement of a will is the value of the assets subject to the will. For example, (N) bequeathing his automobile to his chauffeur is a specific bequest of property.

The testate creditor does not acquire a direct right to the testamentary property upon death; he/she only has a claim against the heirs for the fulfillment of the testamentary obligation. In order for the testate creditor to acquire the right to the testamentary value, the testamentary debtor must fulfill his debt.

If the testamentary disposition is in the nature of appointing heirs in a material sense, the will does not need to be executed. For example, this is the case when (N) appoints (T) as heir in the ratio of 1/2. The appointed heir may be a natural or legal person. It is a universal successor like the legal heir. Therefore, upon the death of the heir, he automatically becomes entitled to the inheritance. Like legal heirs, appointed heirs also acquire the immovable properties belonging to the heir without registration.

For the execution of a will, first of all, there must be a valid will and this will must be opened.

The plaintiff in the will enforcement case is the testate creditor. The person who seeks the enforcement of the will must have the conditions required for the testamentary creditor (Art. 581 TCC). If the testate creditor dies after the testator, the same lawsuit may be filed by his/her (the testate creditor’s) heirs. If there is a will executor, the action for enforcement of the will shall be filed against him/her.

Time Limit For The Enforcement Of The Will

A testamentary claim arises at the time of the death of the testator. The moment of maturity is different. According to Article 600/2 of the Turkish Civil Code, the testamentary receivable becomes due and payable upon the acceptance of the inheritance by the testator or the loss of the right of refusal, unless otherwise is understood from the draft. The testate creditor’s right of action is subject to a 10-year statute of limitations from the date of learning of the testamentary gain. In other words, the 10-year period does not start to run upon death.

In the event that the testamentary debt becomes due later, the 10-year period starts to run from the date of due date. In short, the will creditor’s right of action is subject to a 10-year statute of limitations. The statute of limitations of 10 years also applies in the enforcement of the will.

Competent And Authorized Court For The Enforcement Of The Will

The lawsuit for the enforcement of a will is included in the lawsuits regarding property rights. In this case, pursuant to Article 2 of the Code of Civil Procedure, the court in charge is the civil court of first instance, regardless of the value or amount of the subject matter of the lawsuit.

Preparing A Will, Opening The Will, Lawyer Support In Will Enforcement Matters

Preparing a will is one of the most important and important issues among the testamentary dispositions. The opening and enforcement of the will are some situations that, if not known, can lead to loss of rights.

Getting professional lawyer support in legal processes is critical to protect your rights and manage the process effectively. A lawyer secures your legal rights at every stage, from making the necessary applications within the framework of the relevant legislation to the follow-up of the process before the official authorities. In addition, technical and procedural procedures such as determination of victimization, proper collection of evidence and correspondence with the relevant parties can also be carried out effectively through lawyers.

Especially in sensitive matters such as inheritance law, wills, recognition and enforcement of wills, timely interventions are of vital importance. In such legal cases, it is possible to manage the processes correctly, prevent loss of rights and develop the most appropriate strategies with the support of an expert lawyer.

Providing legal services with its expert staff, Güneş&Güneş Law Office offers effective and strategic solutions to its clients in a wide range of areas, especially in inheritance law. We are ready to protect your individual rights and provide the support you need in the legal matters you need. With 25 years of experience, we are at your side to provide solutions to all your legal problems.

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