What is Heirship Fraud (Collusion of the Deceased)?
What is Asset Stripping from Inheritance (Deceptive Transfer by the Deceased)?
In this article, I will address for my valued readers the deceptive transactions of a testator that cause legal proceedings to have different consequences in both interpersonal and familial or kinship relations.
Collusion (muvazaa) is a situation where the goals of transactions made between individuals differ from their true intentions. To give an example; it is when a person's goal in a legal relationship with a 3rd party is not the same as what they actually intend to do. Recently, individuals have been transferring their assets to someone else to prevent attachment (seizure) proceedings on their property, and they show these transactions in the land registry as if a sale had taken place. The main purpose here is not to sell the assets to 3rd parties, but to lend the property to another person to prevent liens from being placed on it. This situation is called an absolute collusive transaction.
Relative collusion, on the other hand, is when a transaction takes place through a joint decision between the parties. However, a situation where the actual transaction is presented as a different transaction in order to hide it is called a relatively collusive transaction. To give an example; if a person wants to donate their property to a 3rd party but presents the donation as a sale to ensure that other heirs do not object to this situation, this is called a relatively collusive transaction.
The issue we encounter most frequently in inheritance law is the collusive transactions made by the testator. Legal transactions made by the testator, partly to hide their will, are in the nature of relative collusion. The testator's real intention is to strip assets from their heirs. Legal transactions carried out by the testator with the aim of stripping assets are called relatively collusive transactions. In practice, what we encounter most often is that a testator wants to donate their real estate to a 3rd party to prevent their heir from using their rights arising from inheritance law, but presents this donation in the land registry as a properly executed sale to preempt the possibility that the heir might exercise their right to object in the future. Collusive transactions made by the testator with the intention of stripping assets from their heirs are called "Muris Muvazaası" (Deceptive Transfer by the Deceased).
The point aimed at in "Muris Muvazaası" is to prevent heirs from recovering their inheritance shares by filing an abatement lawsuit. The testator presents the donation they actually intend to make as a sale in the land registry for the purpose of stripping assets. The testator aims to prevent their heirs with reserved portions from filing an abatement lawsuit.
However, "Muris Muvazaası" has certain conditions. Namely;
In order for "Muris Muvazaası" to be accepted, first of all, the existence of an apparent transaction is sought. The transaction that is not actually intended but must be made to hide the true intention is called the invisible transaction.
Another issue is that a collusion agreement must have been made between the parties. When the parties make an agreement among themselves regarding why the collusive transaction was made, this agreement is called a "Muris Muvazaası" agreement.
The third issue is that the testator acts with the intention of stripping assets from their heirs.
The final issue is the existence of a secret contract between the parties that is the one actually intended to be made and is hidden from everyone.
"Muris Muvazaası" is carried out with 3rd parties. There is no limitation in the law on this matter, and the testator can perform their collusive transactions with whomever they wish in bad faith.