Decision On Inheritance Decree
T.C. JUDICIARY
2nd Civil Chamber
Main: 2003/11723
Decision: 2004/732
Date of Decision: 22.01.2004
ANNULMENT OF PROBATE – IF THE RENUNCIATION AGREEMENT IS FAVORABLE, IT WILL ALSO BE EFFECTIVE ON THE DESCENDANTS UNLESS THE RENUNCIATION IS CONDITIONED OTHERWISE – THE CHARACTER OF HEIRSHIP – HEIRSHIP AND THE PASSAGE OF THE INHERITANCE
SUMMARY : The heirs (descendants) are the descendants of the renouncing spouse from the inheritor. Because the rule of succession is only valid for the heirs of the class. Therefore, in the concrete case, since B. and Ç., the children of the surviving spouse who renounced the inheritance without receiving any compensation, cannot be the heirs of the inheritor M., these children, who intervened in the lawsuit, should not be given a share of inheritance from Mustafa, while they should be given a share of inheritance from Mustafa and the written judgment has required a reversal.
(Article 475 of Law No. 4721) (Article 17 of Law No. 4722)
Case: At the end of the trial of the case between the parties, the judgment given by the local court was requested to be examined by way of appeal, and all the papers in the file were read and discussed accordingly:
Decision: Inheritance and succession of inheritance shall be determined according to the provisions in force on the date of the death of the heir (Article 17 of Law No. 4722).
The surviving spouse’s children from his/her first spouse who are not related to the heir by blood or descent cannot benefit from the gratuitous renunciation of inheritance agreement made by the surviving spouse with the heir, since they are not heirs. The person who waives loses the title of heirship. In case the renunciation agreement is in consideration, unless otherwise stipulated, it shall also be effective on the offspring of the renouncing person. (TCC Art. 475)
The descendants regulated in the Article are the descendants of the renouncing spouse from the inheritor. This is because the rule of succession is only applicable for class heirs. Therefore, in the concrete case, since Başak and Çiğdem, the children of the surviving spouse who renounced the inheritance without receiving any compensation, cannot be the heirs of the inheritor Mustafa, these children, who intervened in the lawsuit, should not be given a share of inheritance from Mustafa, but they should be given a share of inheritance from Mustafa and the written judgment has required a reversal.
Conclusion It was unanimously decided on 22.01.2004 that the judgment appealed against be reversed for the reasons explained, the attorney fee of 375.000.000 liras, which was appreciated for the hearing, be taken from the defendant and given to the plaintiff, and the advance fee for the appeal be returned to the depositor.