Can Every Heir Whose Reserved Portion Is Violated File a Reduction Lawsuit? You, our valued readers

Can Every Heir Whose Reserved Share is Violated File a Reduction Suit?

In this article, I will attempt to answer the question for my esteemed readers: can every heir whose reserved share has been violated file a reduction suit by applying to the court individually?

According to Article 560 of the Turkish Civil Code; “Heirs who cannot receive the equivalent of their reserved shares may sue for the reduction of the deceased's dispositions that exceed the disposable portion. The rules regarding the shares of legal heirs in a disposition are considered merely as distribution rules, unless it is understood from the disposition that the deceased's intention was otherwise.”

Heirs whose reserved shares are violated have the authority to file a reduction suit individually without the participation of other heirs. A reduction claim is not a claim on behalf of the estate. A request for reduction is a personal claim aimed at enabling the heir to obtain their reserved share. For this reason, there is no requirement to join other heirs in filing a reduction suit or to appoint a representative for the estate partnership. In other words, every heir whose reserved share is infringed has the right to file a reduction suit by applying to the court alone. The heirs' right to file a reduction suit together also remains valid. The right to request a reduction and file a suit follows the same substantive and legal processes for all heirs with reserved shares.

Since each plaintiff’s reduction claim and allegation is considered personal and unique, upon a reduction suit filed by one party, only the infringement of their own reserved share is reduced, and the outcome of the case does not extend its effect to other heirs.

According to Article 561 of the Turkish Civil Code; “Benefits granted to heirs with reserved shares through a disposition mortis causa that exceed the disposable portion shall be subject to reduction proportionally for the part exceeding their reserved shares. In the event of multiple dispositions mortis causa subject to reduction, the part of the benefit granted to an heir with a reserved share that exceeds their reserved share and the benefits granted to persons without reserved shares shall be reduced proportionally.”

REDUCTION SUIT - IRRELEVANCE OF THE WILL NOT YET BEING EXECUTED - ELIGIBILITY TO BE THE SUBJECT OF A LAWSUIT

In the decision of the 2nd Civil Chamber of the Court of Cassation dated 22.12.1995, with Basis No. 13158/1995 and Decision No. 14108/1995, it was summarized as follows: “As there is no rule in our laws indicating that the reduction of testamentary dispositions cannot be requested before they are executed, the fact that the will has not yet been executed has no effect on the result. The possibility of asserting this as a defense does not prevent it from being the subject of an independent lawsuit. Therefore, while the court should have examined the merits of the reduction request and rendered a decision according to the outcome, dismissing the case in the manner written is against procedure and the law.”

As can be clearly seen in the decision, there is no obligation for the will to be fulfilled, or in other words, executed, in order to make a request for reduction.

Reduction Suit - Necessity of Knowing the Entire Estate, Including and Excluding the Subject of the Benefit, to Claim Infringement or Violation of the Reserved Share - Necessity of Determining the Assets and Liabilities of the Estate

“As a rule; in order to speak of the reserved share being infringed or violated, the entire estate, including and excluding the subject of the benefit (transfer), must be known. Although it is necessary to provide the parties with additional and explicit time to present their evidence regarding matters reflected in the file, and to determine whether there is an infringement of the reserved share by calculating the disposable portion of the estate according to the result; in the concrete case, the court noted that upon the notification of the prepared reduction calculation report to the attorneys of the parties, no objection was raised by the attorneys regarding the content of the report or the calculation method, and furthermore, it was declared by the attorneys during the hearing that there were no real estate or assets belonging to the deceased other than the subject properties, and no values to be reported as liabilities of the estate. Under these circumstances, there is no need for the court to conduct new investigations to determine the assets and liabilities of the estate or to investigate the evidence mentioned in the reversal decision. For the stated reasons, the resistance decision is in accordance with procedure and the law and should be upheld.”

Inheritance contracts must be made in the form of an official will. An official will must be made in the presence of an authorized officer, such as a notary. It is possible for an inheritance contract made in this way to be terminated by a written agreement, despite being a transaction subject to official form. Article 13 of the Turkish Code of Obligations states: “It is mandatory to comply with the written form when amending a contract that is foreseen to be made in written form in the law. However, complementary side provisions that do not contradict the text of the contract are excluded from this rule. This rule also applies to validity forms other than the written form.” There is no situation in conflict with this regulation. The amendment and modification of an inheritance contract must be carried out in official form.

If the parties, while making an inheritance contract, choose the official form for termination by their own will even though it is not a legal obligation, termination in simple written form is not possible. In this case, compliance with the official form requirement is mandatory. The form decided by mutual consent is important because it guarantees the rights of the parties more than the simple form. Furthermore, if it has been agreed that the termination of the inheritance contract will be done verbally, this condition is not legally valid.

Terminating inheritance contracts by agreement is a right belonging to the parties of the contract. No one other than the parties to the contract has the authority to make an agreement regarding the termination of the contract. However, the prohibition of representation does not apply to the appointed heir or the beneficiary, but to the testator who makes the disposition mortis causa. Appointed heirs or beneficiaries can be represented by their parents, guardians, or attorneys. If the contract is in the form of a disposition mortis causa for both sides, for example, if the parties have appointed each other as heirs, then the provision regarding the prohibition of representation applies to both sides.

Elimination of an Inheritance Contract by the Deceased's Unilateral Will

According to Article 546/2 of the Turkish Civil Code; “If it emerges that the person appointed as an heir or granted a specific legacy via an inheritance contract has engaged in conduct constituting a ground for disinheritance against the testator after the conclusion of the inheritance contract, the testator may unilaterally eliminate the inheritance contract.”

Unilateral elimination of an inheritance contract must be done using one of the forms foreseen in the law for wills. For example, if a person appointed as an heir through an inheritance contract has committed violence or made threats against the testator after the contract was made, this is a behavior that requires disinheritance, and therefore the testator can eliminate the established inheritance contract through a unilateral declaration of will based on these reasons.

Grounds for disinheritance are regulated in detail in Article 510 of the Turkish Civil Code. The testator may disinherit their heir with a reserved share by making a disposition mortis causa. The act constituting the grounds for disinheritance must have been committed after the inheritance contract. Prior acts and behaviors are not considered valid. The reason for this is that the testator showed the will to enter into an inheritance contract despite knowing the existence of the previous ones.

By entering into an inheritance contract, the testator does not assume an obligation to leave a property during their lifetime to the appointed heir, but only assumes an obligation to ensure the person appointed as an heir at the time of their death holds that status in the estate. In the unilateral elimination disposition, the testator must explicitly state that they are terminating the inheritance contract and specify the reason for disinheritance. Unless there are grounds for disinheritance, an inheritance contract cannot be unilaterally rescinded or eliminated.

Attorney Gizem GONCE

When the testator Murat passed away, his heirs were his wife Ayşe and his daughter Kübra. The testator's daughter, Kübra, rejected the inheritance within the legal period. It is important how the inheritance shares are arranged in the certificate of inheritance for Kübra, who rejected the inheritance, and the surviving spouse.

In the issuance of the certificate of inheritance, as if the rejection of inheritance had not occurred, after all legal heirs and inheritance shares are shown and the heirs who rejected the inheritance are identified, it must be stated that the heirs who rejected the inheritance have lost their status as legal heirs of the deceased and that their shares have passed to the other heirs.

When the entire estate of the deceased is accepted as 4 shares, his wife Ayşe has 1 share of the inheritance right. His daughter Kübra has 3 shares of rights. However, if his daughter Kübra rejects the inheritance, her status as an heir ends. In this case, since Kübra's inheritance share will pass to her mother Ayşe, she will become the owner of the entire estate of the deceased.

The issue of issuing a certificate of inheritance is regulated in Article 598 of the Turkish Civil Code. The certificate of inheritance constitutes a presumption in favor of the heirship of the person or persons in whose name it is issued until the contrary is proven. This document has the function of not only showing the lineage between the deceased and the heirs but also ensuring the transfer of the inheritance to the heirs. For these reasons, if there is an heir or heirs who rejected the inheritance in accordance with Article 605 of the Turkish Civil Code, the certificate of inheritance to be issued should not merely point out the person or persons with heirship status and their shares and the state of rejection; it must show those who lost their heirship status due to the rejection of the inheritance and the fate of their shares.

The decision of the 8th Civil Chamber of the Court of Cassation dated 20.03.2014, with Basis No. 2013/9820 and Decision No. 2014/4760, also provides explanations on the subject.

2. Legal Inheritance Shares When the Mother and Father are Heirs

To give an example; when the bachelor Ali passed away, his heirs were his mother Ceylan and his father Burak. In this case, the inheritance shares arranged in the certificate of inheritance are as follows: When the entire inheritance share is accepted as 2 shares, the legal inheritance shares of the mother and father are 1 share each, equally.

When it is accepted that one or both of the mother and father have passed away earlier, in accordance with Article 496/2 of the Turkish Civil Code, their own descendants take the place of the deceased mother and father through succession at every degree. Siblings of the deceased who die without descendants also become heirs as successors of their ascendants.

3. Legal Inheritance Shares of Descendants in Case of Father's Death and Mother Being Alive

To give an example; the deceased Ahmet died childless and a widower. His father, Ceyhun, had passed away long before Ahmet. Father Ceyhun had two sons named Deniz and Emre, and a grandchild, Kadir, from his son Pars who had passed away before him. In this case, how the inheritance shares are distributed is important.

According to Article 496 of the Turkish Civil Code; half of the deceased Ahmet's estate belongs to his mother Berrin, and the other half belongs to his deceased father Ceyhun. However, because father Ceyhun passed away earlier, his inheritance share passes to his descendants in accordance with the principle of succession. In this case, father Ceyhun's inheritance share remains with his two sons, Deniz and Emre, and his grandchild Kadir from his son Pars, who passed away before him.

When the deceased Ahmet's inheritance share is accepted as 6 shares, 3 shares should be distributed to his mother Berrin, who is alive, and the other 3 shares should be distributed equally to Deniz, Emre, and Kadir, who succeed the father.

When the surviving spouse of the deceased is an heir along with the grandparents' group (paternal and maternal grandparents), their legal inheritance share is three-quarters of the entire estate. If the deceased's parents and grandparents and their descendants are not alive, then the entire estate remains with the spouse.

Attorney Gizem GONCE