What Is Collusion And Evasion Of Property From Inheritance
Collusion is the agreement of the parties to enter into a contract that does not conform to their real will, which, although apparently valid, is not valid between them, in order to deceive third parties. For example, the heir who transfers the immovable property to third parties through sale in the title deed in order to evade the inheritance has made a collusive transaction. Because, the purpose of the apparent sale transaction of the parties is to conceal the evasion of the inheritance. Therefore, both the apparent sale transaction and the contract made secretly (verbally or in writing) between the parties are invalid.
In order for the conditions of collusion to be fulfilled, the following three conditions must coexist:
There must be a knowing and intentional incompatibility between the real intentions of the parties and the transactions they have made,
There must be an intent to deceive third parties,
The parties must agree on a collusive transaction between them.
The subject of this article, ‘muris collusion’ (evasion of inheritance), is legally referred to as qualified (relative) collusion. There are two transactions in qualified collusion: The apparent transaction and the hidden transaction. The parties aim to deceive third parties through these two transactions. The apparent transaction does not reflect the real will of the parties and aims to deceive third parties. For example, third parties are intended to be deceived by transferring the property to be donated through a sale transaction. In collusive transactions, the real will of the parties is not reflected by the apparent transactions, but by the hidden transactions. In the example given above, the donation transaction is a hidden transaction.
Evasion Of Property From Inheritance
Inheritance evasion is to present the gratuitous gains made by a person in order to deprive his heirs of the right of inheritance as a sale or a contract of maintenance until death. The main purpose here is to prevent the heirs with reserved shares from receiving their inheritance shares by filing a lawsuit for equalisation in the future. In other words, the heir wants to prevent his heirs from filing a lawsuit in the future by pretending that he has transferred the goods he actually wants to donate in exchange for sale. Inheritance evasion lawsuit investigates whether there are four elements of collusion:
Apparent transaction (contract),
Collusion agreement,
Intention to deceive third parties (heirs),
Secret contract.
OSTENSIBLE TRANSACTION
In practice, the apparent transaction appears as a sale, donation or a contract of maintenance until death. These transactions are transactions that are not in accordance with the real will of the heir in order to evade property from the heirs, and that do not have any judgement and result. For example, the purpose of the heir who transfers a house to any person in the title deed as if he donated it to anyone in order to evade the inheritance is to prevent the reserved shareholders from filing a lawsuit in the future.
COLLUSION AGREEMENT
A collusion agreement is the agreement of the heir and the third party that the apparent contract is made only to deceive the heirs. The parties agree that the apparent transaction made for the purpose of evading the inheritance shall not have any judgement and result between them. This agreement may be verbal or in writing.
PURPOSE OF DECEIVING HEIRS
Another element of the muris collusion is that the transaction, i.e. the contracts such as sales, etc., which the parties seemingly created, are made with the purpose of deceiving the heirs. If the parties (the inheritor and the third party) do not intend to deceive the heirs, a lawsuit for theft of inheritance cannot be filed regarding the transaction.
SECRET CONTRACT
It is a contract that reflects the true will of the heir and is hidden behind the apparent transaction. For example, the heir wants to donate his property, but hides it behind the sales contract in order to deceive the heirs. Since the hidden contract (donation) is actually in accordance with the real will of the parties, it is valid as a rule. Here, it is important whether the secret contract is subject to the form requirement or not. The secret transaction does not depend on the form for immovable and movable properties without title deeds. However, since it is subject to the condition of official form in immovable properties with title deeds and this form is not complied with in the ‘secret contract’, it is invalid.
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