EQUALISATION CASE
The neutralisation of certain testamentary and inter vivos acquisitions made by the executor (the legator) to the extent that they violate the reserved shares of the reserved heirs (i.e. exceed the savings rate of the legator); 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 determination of their return 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.
WHO CAN FILE A LAWSUIT FOR EQUALISATION?
HEIRS WITH RESERVED SHARES AND THE ACTION FOR EQUALISATION
According to the Civil Code, as a rule, only the heirs with reserved shares can file the equalisation lawsuit. 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, heirs with reserved shares who do not file a lawsuit cannot benefit from this equalisation decision.
If the heir with reserved share does not have the capacity to act, his/her legal representative shall file the equalisation lawsuit on his/her 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.
CREDITORS OF RESERVED SHARE HEIRS AND BANKRUPTCY ESTATE
As mentioned above, as a rule, only the heirs with reserved shares can file an action 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 an equalisation lawsuit. 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 enforcement 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.
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 reserved share is disinherited by the heir, the creditors may request the cancellation of the disinheritance for the reserved share portion up to the amount of the receivable.
AGAINST WHOM A LAWSUIT FOR EQUALISATION CAN BE FILED
The defendants in the restitution case are the persons to whom the gains that exceed the savings rate of the heir, encroach on the reserved shares and are subject to restitution by law. These may be third parties or heirs. If the person to whom the gain was made is deceased, 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.
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. In this case, if the beneficiary transfers the immovable property to third parties who are aware of the situation in order to deprive the heirs of the reserved shares of these rights, after the transfer made by the heir in order to eliminate the reserved share rules, without the knowledge and instruction of the heir, a lawsuit for restitution may be filed by these heirs of the reserved shares against these malicious persons. In short, in order to apply the decision of the Court of Cassation (dated 13.1.1975, numbered 1974/7 E, 1975/1 K) on this subject;
Transfer of this property to a third party by the liable for equalisation in order to evade equalisation
The third party must take over the property knowing this intention.
TIME LIMIT FOR FILING A LAWSUIT AND THE COMPETENT COURT
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 (Article 571 of the TCC). However, if the annulment of one disposition revives (revives) the other, the time limit starts 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. In other words, even if the heir learns that the disposition infringes his/her reserved share before the opening of the inheritance, the periods do not run.
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-inheritance acquisitions 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.
ASSERTION OF THE REQUEST FOR EQUALISATION AS A DEFENCE
Apart from the above-mentioned claim for equalisation through litigation, the claim for equalisation may also be asserted through defence. In other words, the heir with a reserved share who has missed the time limits for the equalisation lawsuit and cannot file a lawsuit for equalisation may assert equalisation through defence against the claims against him. However, this defence cannot be asserted in every claim directed to the reserved heir by the beneficiary of the gain subject to restitution. It can only be asserted against the demands of the beneficiary of the gain to give the property or money subject to the gain directly based on this gain. In other words, after the claims subject to equalisation are fulfilled, the defence of equalisation cannot be asserted against other claims.
The defence of equalisation shall not be taken into consideration by the judge and must be asserted explicitly by the heir in the lawsuit filed against the heir with reserved share. If a lawsuit is filed against more than one heir with reserved share, this defence shall be effective only in favour of the one who asserts it. The assertion of the defence of equalisation is not subject to any time limit. However, explicit or implicit waiver is possible.
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