What is Heirship Fraud (Collusion of the Deceased)?
In this article, I will discuss the collusive transactions of the decedent, which cause legal transactions to have different outcomes in interpersonal, familial, and kinship relations, for you, my esteemed readers.
Collusion (muvazaa) is a situation where the purposes of transactions made between individuals differ from their actual intentions. To give an example; it is when a person's purpose in a legal relationship with a third party is not the same as what they actually intend to do. Recently, individuals have been transferring their assets to others to prevent foreclosure proceedings on their properties, showing these transactions as sales in the land registry. The real intention here is not to sell the assets to third parties, but to lend them to another person to prevent the attachment of the assets. This situation is called an absolute collusive transaction.
Relative collusion, on the other hand, is a situation where a transaction takes place by mutual decision between the parties, but is presented as a different transaction in order to hide the actual one. For example, if a person wants to donate their property to a third party but presents the donation as a sale in order to prevent other heirs from objecting, this is called a relatively collusive transaction.
The issue we encounter most often in inheritance law is the collusive transactions made by the decedent. The legal transactions that the decedent performs to hide their will are in the nature of relative collusion. The decedent's real intention is to deprive their heirs of property. Legal transactions performed by the decedent for the purpose of depriving heirs of property are called relatively collusive transactions. In practice, we most often encounter cases where a decedent wants to donate their real estate to a third party to prevent an heir from exercising their rights arising from inheritance law, but presents this donation as a properly executed sale in the land registry to prevent the heir from potentially exercising their right to object in the future. Collusive transactions made by a decedent for the purpose of depriving their heirs of property are called "Muris Muvazaası" (collusion by the decedent).
The objective in collusion by the decedent is to prevent heirs from recovering their inheritance shares by filing a reduction action (tenkis davası). The decedent presents the donation they actually intended to make as a sale transaction in the land registry to avoid giving away their assets. The decedent aims to prevent heirs with reserved shares from filing a reduction action.
However, there are certain conditions for collusion by the decedent. Specifically:
• For collusion by the decedent to be accepted, there must first be an apparent transaction. The transaction that is not actually intended but is carried out to hide the true intention is called the invisible transaction.
• Another point is that a collusion agreement must have been made between the parties. When parties make an agreement among themselves regarding why the collusive transaction is being made, this is called a collusion agreement by the decedent.
• The third point is that the decedent acts with the intention of depriving their heirs of property.
• The final point is that a secret contract is made between the parties, which is the actual transaction intended to be made and kept hidden from everyone else.
Collusion by the decedent is carried out with third parties. There is no limitation in the law on this matter, and the decedent can carry out their collusive transactions with whomever they wish in bad faith.