What Is Inheritance Equalisation Lawsuit?
The heirs who have an inheritance right that the heir cannot intervene or dispose of in any way are called “reserved share heirs”. The heirs with reserved shares, which are limitedly listed in the Civil Code, are as follows
Descendants of the heir (children, adopted children, grandchildren and their children),
Parents of the heir,
Spouse of the heir.
The siblings of the heir, who were previously considered as reserved share heirs, have been excluded from being reserved share heirs with the amendment. However, for the deaths that occurred before 10 May 2007, the reserved share of the siblings will also be taken into consideration in the equalisation lawsuit filed at a later date. The equalisation lawsuit is a lawsuit filed to eliminate the infringement of the inheritance right of the heirs with reserved shares by exceeding the freedom of disposition of the heir and to bring the savings made by the heir within the legal limits.
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Tenkis lawsuit is a lawsuit related to inheritance law and it is a lawsuit that can be filed in the event of the death of the muris (inheritor). It is not possible to file this lawsuit while the muris is alive.
The neutralisation of certain testamentary and inter vivos acquisitions made by the testator (the inheritor) to the extent that they violate the reserved shares of the reserved heirs (i.e. exceed the savings rate of the inheritor); in other words, if a performance obligation arises from these transactions, the release of the reserved heirs from this performance obligation, or if it has been performed, the decision to return it at this rate is called equalisation (TMK Art. 560).
As a rule, the action for equalisation is the action in which the heirs with reserved shares and, as an exception, the creditors of these heirs request the court to neutralise the gains of the heir that exceed the savings rate of the heir. The action for equalisation can only be filed in the event of the death of the heir. Even if it is certain that the acquisition made while the heir is alive violates his/her reserved shares and even if it will cause irreparable damages when his/her death is expected, the heirs with reserved shares still cannot file an action for equalisation. They cannot request an interim injunction on any grounds. In short, the rights of the heirs depend on the death of the heir.
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According to the Civil Code, as a rule, only heirs with reserved shares can file a lawsuit for equalisation. As mentioned above, the heirs with reserved shares are the heir’s descendants, parents and spouse.
Since the right to file an action for restitution is a right that protects only each reserved share heir, neither the representative appointed to the inheritance company nor the executor of the will (will enforcement officer) is authorised to file this action.
Each reserved share heir may file the lawsuit independently from the others. Although the amount of encroachment on the savings rate is calculated by taking into account all reserved shares; not the entire amount to be found, but only the reserved share of the heir who filed a lawsuit can be equalised. In other words, the heirs with reserved shares who do not file a lawsuit cannot benefit from this equalisation decision.
If the heir with a reserved share does not have the capacity to act, his legal representative shall file the equalisation lawsuit on his behalf. If he/she neglects to do so, he/she shall be liable within the scope of the provisions on the responsibility of the parent or guardian.
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As mentioned above, as a rule, only the heirs with reserved shares can file a lawsuit for equalisation. However, apart from the heirs with reserved shares, their creditors have the right to file this lawsuit when the heirs with reserved shares do not file a lawsuit for equalisation. The purpose here is to ensure that the creditors can receive their receivables. However, they can only file this lawsuit if they have a certificate of incapacity about the heir with reserved share. The certificate of insolvency must be on the date the inheritance is opened. If the certificate of insolvency is obtained after the opening of the inheritance, they cannot file a lawsuit for equalisation even if the court decision or execution proceedings against the debtor have already taken place.
If the debtor is bankrupt, then the bankruptcy estate has the right to file a lawsuit for equalisation. Creditors and the bankruptcy estate may give a period of time to the heir with a reserved share to file a lawsuit for equalisation and may file a lawsuit for equalisation if this does not yield results. If the time limit here must be an appropriate time limit or if it is certain that giving a time limit would be meaningless, the creditor or the bankruptcy estate may directly file an action for equalisation.
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The creditors may file a claim for equalisation only up to the amount of their own claims. Again, in the event that the heir with a reserved share procrastinates and does not follow up the equalisation lawsuit filed by the heir with a reserved share in order to damage the creditors, the creditors may file a lawsuit for equalisation themselves by proving this. Likewise, in the event that the heir with a reserved share is disinherited by the heir, the creditors may request the cancellation of the disinheritance for the reserved share part up to the amount of the receivable.
The defendants in the equalisation lawsuit are the persons to whom the gains subject to equalisation are made by exceeding the savings rate of the heir and encroaching on the reserved shares and subject to equalisation by law. These may be third parties or heirs.
If the person to whom the gain was made is dead, his/her heirs will be the defendant. If the acquisition was made to more than one and different persons, more than one person will be the defendant. Although the heir has the right to sue all of them, he is not obliged to do so. However, he will have to bear the consequences of this. Because the order rules in equalisation may have unfavourable consequences.
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As a rule, the action for equalisation can be filed against the persons to whom the gain was made. However, as an exception, the Court of Cassation accepts that if the property subject to the gain has been transferred to third parties, it can be filed against these persons. Here, if, after the assignment made by the heir in order to eliminate the reserved share rules, the beneficiary assigns the immovables to third parties who know the situation in order to deprive the heirs with reserved shares of these rights, without the knowledge and instruction of the heir, a lawsuit for restitution may be filed by these heirs with reserved shares against these malicious persons.
The right to file an action for restitution is one year from the moment the heirs learn that their reserved shares have been infringed. The lawsuits to be filed for wills shall lapse after ten years from the date of the opening of the will and ten years from the opening of the inheritance for other dispositions (Art. 571 TCC). However, if the annulment of one disposition revives the other, the periods begin to run only on the date of finalisation of this annulment decision. Here, the one-year period does not start to run before the opening of the inheritance.
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Likewise, in terms of wills, this period does not start until the will is opened. The beginning of the ten-year period is the date of the opening of the inheritance for inter vestments and inheritance agreements, and the date of the opening of the will for wills. The date of the opening of the will is the day after the will is submitted to the Court of Peace and the judge calls the known heirs and opens the will in their presence. As another special case, if a disposition subject to equalisation becomes valid with the cancellation of a disposition, the periods start to run from this moment.
These one-year and ten-year periods are not statute of limitations, but are forfeiture periods.
The Civil Courts of First Instance are the courts in charge of the equalisation case.
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