What is an oral will? What should be done when a person residing in an institution makes an oral will?
What is an oral will? What should be done when a person staying in an institution makes an oral will?
In this week's column allocated to me in the newspaper, I will try to explain a very important subject to you. As you know, being a guardian carries significant responsibilities. I will try to provide information on what should be done in the event that a person under guardianship who is staying in an institution makes an oral will.
The manner in which a guardian's duty ends at the end of the term is regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 480- The guardianship duty ends with the expiration of the term, unless it is extended.
In the relevant article of the Turkish Civil Code, in the event that a guardian is appointed to a restricted person by the guardianship authority, the duty ends automatically upon the expiration of the term if it is not extended. The Court of Cassation is of the opinion that if a decision regarding the termination of the guardian's duty is not taken by the competent court, the guardian's duty will continue with the tacit acceptance of both the guardian and the Judge of the Civil Court of Peace at the end of the term. This perspective is accepted as a general rule, as it is consistent with other provisions brought to ensure that a person under guardianship is not left without representation, as well as with the will of the legislator.
The question of how the inheritance will be distributed upon the death of the restricted person under guardianship, when deemed necessary by the judge of the Civil Court of Peace, which is the guardianship authority, is a matter of curiosity. The inheritance of a person under guardianship is distributed by their legal heirs in accordance with the provisions on inheritance contained in Book 3 of the Civil Code. There is no different practice regarding the distribution of the inheritance of a person who passes away while restricted. With the occurrence of death, the state of restriction also ends, and the transfer transactions of the assets belonging to the restricted person are carried out by their legal heirs specified in the certificate of inheritance. The fact that the legal heirs did not provide support or show interest in the care of the restricted person during the period when they were alive and healthy does not affect their status as heirs.
In accordance with Article 539 of the Turkish Civil Code;
4. Oral will
a. Expressing last wishes
Turkish Civil Code Article 539- A testator may resort to an oral will if they are unable to make an official or handwritten will due to extraordinary circumstances such as immediate danger of death, disruption of transportation, illness, or war. For this purpose, the testator explains their last wishes to two witnesses and charges them with writing or having a will written in accordance with this statement. With the exception of the literacy requirement in the preparation of an official will, the prohibitions regarding witnesses also apply to the witnesses of an oral will.
It is regulated.
Since an oral will is an exceptional form of a will, it remains in effect for a temporary period. If the extraordinary situation changes and ceases to exist, the testator has the opportunity to make a handwritten or official will.
As clearly regulated in the Turkish Civil Code, for an oral will to be valid, one must first be in an extraordinary situation and the will must have been made in the presence of witnesses. The restricted testator can only make an oral will in situations such as immediate danger of death, disruption of transportation, illness, or war. The restricted testator explains their last wishes to the witnesses. The witness who records the last wishes of the restricted person and the other witness must sign the document and apply to the Civil Court of Peace without delay. Applications that are not made immediately cause the oral will to be invalid.