Forfeiture Of Inheritance – Insolvency
T.C.
JUDICIARY
14TH CIVIL COURT
ESAS NO. 2016/2553
KARAR NO. 2016/8639
DECISION DATE. 24.10.2016
IN THE CASE OF FORFEITURE OF INHERITANCE, THE LAWSUIT MUST BE FILED BY SHOWING ALL CREDITORS.
LAWSUIT : At the end of the hearing held upon the petition filed on 14.12.2015 by the plaintiffs’ attorney for the forfeiture of the inheritance; the judgment dated 12.01.2016 on the dismissal of the lawsuit was requested to be examined by the plaintiffs’ attorney, and after the acceptance of the petition of appeal, which was understood to be in due time, the file and all the papers in it were examined and considered as necessary:
DECISION : The counsel for the plaintiffs claimed that … the deceased … died on 31.03.2015, that he did not leave any assets in the estate, and that the estate of the deceased should be determined to be insolvent due to the debt subject to the execution proceedings of the 4th Execution Office numbered 2015/7700 Esas.
The court decided to dismiss the lawsuit on the grounds that the inheritance of the deceased was rejected by the plaintiffs after the expiration of the legal rejection period.
The judgment was appealed by the plaintiffs’ counsel within the time limit.
The lawsuit is a forfeiture of inheritance lawsuit filed pursuant to Article 605/2 of the Turkish Civil Code based on the legal reason of determining that the estate is insolvent. If the insolvency of the deceased is clearly evident or officially determined at the date of his death, the inheritance is deemed to be rejected. The heirs may request the determination of the insolvency of the deceased at any time, unless there is a contradiction written in Article 610 of the Turkish Civil Code, that is, unless they have tacitly accepted the inheritance. The period specified in Article 606 of the Turkish Civil Code shall not apply in this case. The lawsuit shall be filed by directing the case against the creditors.
In the concrete case, although the court decided to dismiss the lawsuit on the grounds that the three-month prescriptive period has expired, this justification is not appropriate. The claim is not related to the actual rejection of the inheritance pursuant to Article 605/1 of the TMK, but to the request for the determination that the inheritance is insolvent (forfeiture) pursuant to Article 605/2 of the TMK. The lawsuits under Article 605/2 of the TMK are not subject to any period of time. In this respect, while a decision should be made according to the result by directing hostility to all creditors and evaluating the evidence shown by the parties, it was not deemed correct to establish a written judgment by mischaracterizing the request, and for this reason, the decision had to be reversed.
CONCLUSION : For the reasons explained above, it was unanimously decided on 24.10.2016 that the appeal objections of the plaintiffs’ attorneys were accepted and the judgment was reversed, other issues were not examined for the time being due to the reason of reversal, and the pre-paid appeal fee was returned to the depositor upon request.