Disinheritance In Court Of Cassation Decisions
Requirement for the Beneficiaries of the Disqualification to Prove the Truth of the Reason for Disqualification
In the decision of the 3rd Civil Chamber of the Court of Cassation dated 26.3.2019 and numbered 2017/13850E-2019/2573K, “In his will dated 05/09/2007, the heir showed the reason for disinheritance as the failure of the plaintiffs, his daughters, to take care of him despite his illness. In the concrete case; the heir resided in the village, from time to time he went to … for treatment due to his illness, his wife died on 03/07/2007, after a while the heir moved to the defendant’s son … who lived in … and stayed there until his death on 17/11/2007, … and … It has been established with the witness statements that the plaintiffs, who resided in the village until the date of the relocation, came to the village and fulfilled their obligations arising from family law against the inheritor; in other words, the defendants, who benefited from the removal, could not prove the truth of the reason shown. ” was stated. When the decision is examined, it is seen that when an heir is excluded from inheritance, the other heirs are obliged to prove the correctness of the reason for this exclusion.
In the case subject to the decision, the heir excluded his daughters from inheritance on the grounds that they did not take care of him when he was ill. Upon this, the plaintiffs filed a lawsuit for the annulment of the exclusion. Although the other heirs, who were the defendants in this case, were obliged to prove that the reason for disinheritance was valid, they could not prove this issue and it was revealed by the witnesses that the plaintiffs did not neglect their family obligations and the disinheritance was unfair.
The Faulty Spouse cannot be an Heir in Divorce
In the decision of the 14th Civil Chamber of the Court of Cassation dated 18.10.2017 and numbered 2016/14899E-2017/7670K, “As it is known, it is stipulated in Article 181 of the TCC that the other spouse who is at fault in the divorce cannot be an heir, and a separate lawsuit cannot be filed for such a determination. In other words, if one of the heirs of the deceased spouse continues the lawsuit during the divorce case, it will be determined whether the other spouse is at fault, and as a result of such a determination, it will be determined whether he/she can be a legal heir in accordance with the aforementioned legal regulation. There is no doubt that the legal heirs and their inheritance shares will be determined by considering this determination provision in the lawsuit requesting a certificate of inheritance to be filed. Apart from this; according to Article 510/1 of the Turkish Civil Code, disinheritance can only be made by a testamentary disposition. There is no testamentary disposition by which the plaintiff … disinherits the defendant. Therefore, it is clear that the aforementioned legal regulation (Article 510 of the TCC) cannot be applied in the concrete case since the conditions for disinheritance have not been met.” In the concrete case, the heirs of the deceased spouse who died during the divorce case claim that the other spouse was at fault in the divorce and demand that he be disinherited. However, the heir did not make any testamentary disposition for disinheritance. The Court of Cassation, on the other hand, with a correct reasoning, stated that disinheritance cannot be decided in the case where the determination of the spouse who is at fault in the divorce is requested, and if the spouse is already at fault, he/she cannot be an heir as per the Law, and therefore, it should be decided that there is no need for a decision in this case.
Protection of the Reserved Share in Case of Failure to Prove the Reason for Disinheritance
In the decision of the 3rd Civil Chamber of the Court of Cassation dated 22.2.2018 and numbered 2017/17228E-2018/1512K, “In the case, although the reason for revocation is written in the will dated 14/07/2009, it is understood that the reasons for revocation sought in the law have not been realized according to the evidence. Likewise, the plaintiff could not prove the reasons for revocation in terms of the section of the will other than disinheritance. If the existence of the reason cannot be proved or if the reason for removal is not specified in the disposition, the disposition shall be fulfilled except for the reserved share of the heir; however, if the heir made this disposition due to a clear mistake about the reason for removal, the removal shall be invalid.” Since the defendants cannot prove the reason for the disinheritance, the disinheritance must be valid in proportion to the savings quorum of the heir in accordance with Article 512/3 of the TCC. In other words, it was not deemed correct to make a decision in the written manner without considering that the plaintiff can claim his/her reserved share by deciding to invalidate the part of the will regarding the disinheritance to be valid within the limits of the savings quorum and that the lawsuit will continue as a case of equalization.’ ‘ In this decision, the Court of Cassation stated that if the reasons shown as grounds for disinheritance cannot be proved by the defendants, the reserved share of the disinherited heir will be protected, but if there is a disposition on it, this disposition will be valid. To express this issue with an example, in a situation where the heir has two children and disinherits one of them, the disinherited child’s reserved share is ¼, and when the heir saves ¾ of his/her inheritance by preserving the reserved share of the other child who is not disinherited, the disinherited child will receive ¼ of the inheritance share and the disposition of ½ will remain valid.
Acceptance of the Action for Annulment of the Disinheritance by the Other Heirs who were not excluded from inheritance
In the decision of the 3rd Civil Chamber of the Court of Cassation dated 28.2.2019 and numbered 2017/14122E-2019/1702K, “The heir showed the reasons for disinheritance in his will. Although the reasons for disinheritance occurred in the case, the defendants … and … accepted the case. In this case, pursuant to Article 512/3 of the Turkish Civil Code, the disinheritance shall be valid in proportion to the savings quorum of the heir, in other words, it was not deemed correct to reject the request completely without considering that the plaintiff could request the reserved shares of the defendants who accepted.
In that case; since the acceptance is a transaction that ends the lawsuit and can be made at any stage of the proceedings, the judgment had to be reversed in order to make a decision on the statement of acceptance of the lawsuit by the attorneys of some of the defendants.’ ‘ When the decision is examined, it is seen that the heir duly showed the reason for the dismissal within the framework of the testamentary disposition, and although the heirs who benefited from this dismissal accepted the lawsuit in the annulment of the dismissal, the local court decided that the dismissal was valid. Since the declaration of acceptance has legal consequences like a final judgment and can only be requested to be annulled in cases of defect of will, the local court should have decided to annul the removal. Because the burden of proof in the annulment of the dismissal is on the defendants, and if the defendants cannot prove the reason for the dismissal or if they accept the case, there can no longer be a valid dismissal.
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