Can a Person Under Guardianship Write a Will?
Can a Person Under Guardianship Write a Will?
In this week's column allocated to me in the newspaper, I will try to explain a very important issue to you. As you are aware, being a guardian carries significant responsibilities. I will attempt to provide information regarding the procedures that must be followed if a person under guardianship residing in an institution wishes to write a will.
The Turkish Civil Code details how a guardian's duty ends upon the expiration of their term. Specifically:
Turkish Civil Code Article 480 - The duty of guardianship ends with the expiration of the term, unless extended.
Under the relevant article of the Turkish Civil Code, if a guardian has been appointed for a restricted person by the guardianship authority, the duty ends automatically upon the expiration of the term unless it is extended. The Court of Cassation holds the view that if the authorized court does not issue a decision stating that the guardian's duty has ended, the guardian's duty continues through 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 intended to ensure that a person under guardianship is not left without representation, as well as with the intention of the legislature.
In the event of the death of a restricted person under guardianship, the question of how the inheritance will be distributed, if deemed necessary by the Judge of the Civil Court of Peace (the guardianship authority), is a matter of interest. The inheritance of a person under guardianship is distributed by their legal heirs in accordance with the inheritance provisions set out in Book 3 of the Civil Code. There is no different procedure for the distribution of the estate of a person who passes away while under restriction. With the occurrence of death, the status of restriction also ends, and the transfer of assets belonging to the restricted person is carried out by their legal heirs as specified in the certificate of inheritance. The fact that legal heirs did not provide support or show interest in the care of the restricted person while 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. Declaring last wishes
Turkish Civil Code Article 539 - If a testator cannot make an official or handwritten will due to extraordinary circumstances such as imminent danger of death, interruption of transportation, illness, or war, they may resort to an oral will. To do this, the testator explains their last wishes to two witnesses and charges them with the task of writing or having a will written that conforms to this declaration. Aside from the requirement of literacy for the preparation of an official will, the prohibitions regarding witnesses also apply to witnesses in an oral will.
It is stipulated that.
Since an oral will is an exceptional form of testament, it remains in effect only for a temporary period. If the extraordinary situation changes or ceases to exist, the testator gains the opportunity to create a handwritten or official will.
As clearly stipulated in the Turkish Civil Code, for an oral will to be valid, there must first be an extraordinary situation, and the will must be made in the presence of witnesses. A restricted person who is a testator can only make an oral will in situations such as imminent danger of death, interruption 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.
A person under guardianship can certainly write a will provided that they meet the necessary formal requirements. However, as is known, the fact that a will must be made in writing and comply with formal requirements affects the validity of the will. Other matters and their impact on the validity of the will are decided by the Judge of the Civil Court of Peace. The absence of objection to the will by the heirs and the enforceability of the will are sufficient factors for the acceptance of the will.