What is Heirship Fraud (Collusion of the Deceased)?
What is Smuggling Assets from an Inheritance (Testator’s Collusion)?
In this article, I will address, for my esteemed readers, the collusive transactions of a testator that cause legal actions to produce different results in both personal relationships and familial or kinship ties.
Collusion (muvazaa) is a situation where the purpose of transactions made between parties differs from their true intent. 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 intended to do. Recently, individuals have been transferring their assets to others to prevent liens from being placed on their properties, showing these transactions in the land registry as sales. The true purpose here is not to sell the assets to third parties, but to lend the assets to another person to prevent liens from being placed on them. This situation is called an absolute collusive transaction.
Relative collusion is when a transaction is carried out by a mutual decision between parties; however, it is presented as a different transaction for the purpose of concealing the actual one. For example, when a person wants to donate their property to a third party but presents the donation as a sale to ensure other heirs do not object, this is called a relative collusive transaction.
The issue encountered most frequently in inheritance law is the collusive transactions made by the testator. Legal actions taken by the testator to conceal their will are of a relatively collusive nature. The testator’s true intent is to smuggle assets from their heirs. The legal transactions carried out by the testator for the purpose of smuggling assets are called relatively collusive transactions. What we encounter most often in practice is the testator wishing to donate real estate to a third party to prevent an heir from exercising their rights arising from inheritance law, but presenting this donation as a properly executed sale in the land registry due to the possibility that the heir might exercise their right to object in the future. Collusive transactions made by a testator for the purpose of smuggling assets from their heirs are called "Muris Muvazaası" (Testator’s Collusion).
The objective in testator’s collusion is to prevent heirs from filing a reduction action to reclaim their inheritance shares. The testator presents the donation they actually intended to make as a sale in the land registry to smuggle assets. The testator aims to prevent heirs with reserved shares from filing a reduction action.
However, there are certain conditions for testator’s collusion. Specifically;
For testator’s collusion to be accepted, first, the existence of an apparent transaction is required. The transaction that is not actually intended but must be performed to hide the intent 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 performed, this is called a testator’s collusion agreement.
The third point is that the testator must act with the intent to smuggle assets from their heirs.
The final point is that a secret contract, which is the transaction truly intended and hidden from everyone, must be made between the parties.
Testator’s collusion is carried out with third parties. There is no limitation in the law regarding this; the testator can perform their collusive transactions in bad faith with whomever they wish.