Disinheritance
A person’s reserved share heirs are his/her descendants, parents and surviving spouse. If a person, whether he/she has a reserved share or not, commits some unlawful acts against the attempt and his/her relatives, for example, if he/she unlawfully and intentionally attempts to kill him/her or kills him/her, he/she cannot be an heir, this is a situation of deprivation of inheritance. It automatically results without the need for any death-related design. In this article, we will focus on the situations that cause criminal disinheritance under Article 512 of the CC. Pursuant to this provision, each of the heirs, parents or surviving spouse of the heir may be excluded from inheritance by a testamentary disposition of the heir due to certain acts committed against the heir. There are 2 possibilities for the heirs of reserved shares to be deprived of their reserved shares.
Waiver agreement: It is a bilateral contract to be concluded by the parties with a mutual declaration of will.
Abrogation: It is a transaction that results in a unilateral legal transaction.
EXCLUSION FROM INHERITANCE (RENUNCIATION)
Pursuant to Article 510 of the Turkish Civil Code;
If the heir has committed a serious offence against the heir or one of the relatives of the heir,
The heir has significantly failed to fulfil his or her family law obligations towards the heir or members of the heir’s family.
COMMITTING A SERIOUS OFFENCE
In Paragraph 1, it is clearly understood from the phrase “committing a serious offence” that it must be an offence in the sense of the Criminal Code. However, the gravity of the offence is not a gravity in the sense of the Criminal Law. This offence must be an offence that will damage family ties arising from family law. The judge will appreciate whether this offence damages family ties or not. The offence committed by the heirs of the reserved share against the inheritor and his/her relatives must both objectively be an offence that will break the family ties and subjectively believe that the family ties have been broken.
It is not important that the perpetrator has been tried and punished. What is important is the damage caused by the act to the family ties. In addition, the heir of the reserved share to be excluded does not need to be the direct (primary) perpetrator. This heir may be the instigator, instigator, etc.
In order to talk about an offence, the offence must be committed unlawfully and deliberately. For example, if the heir attacks the heir because he was attacked by the heir and the heir stabs the heir in self-defence, we cannot talk about an unlawful act here. Likewise, if the heir lacks the power of discernment while performing the act, it is not possible to talk about the reason for exclusion, as it will be considered a defect.
In subparagraph 1, the phrase “to one of his relatives” means the spouse, blood relatives, in-laws, adopted children, fiancées and even if there is no filial bond between the heir and the heir, if he has raised and raised a person, this is also considered one of his relatives. The friends of the heir are also considered as his/her relatives.
In the decision of the 2nd Civil Chamber of the Court of Cassation E-2004/5159 K-2004/6038 dated 10.05.2004, “From the collected evidence, it is understood that Halil, one of the children of the heir, incurred excessive debts, and due to this debt, the creditors threatened the heir with death and shot his house, and this situation arose as a result of the negligent behaviour of the plaintiff (Halil). Children are obliged to protect the peace and integrity of the family and to help and respect each other. The heir was not mistaken in the reason for the disinheritance. The exclusion is appropriate. While the court should dismiss the lawsuit, it is contrary to the procedure and the law to make a judgement as written.”
Again, in the decision of the 2nd Civil Chamber of the Court of Cassation dated 04.02.2002 and numbered 2002/194 E. 2002/1169 K., “It has been established with the witness statements that the plaintiff was extremely indifferent to the testator, did not open the door to him, and hung up the phone to his face, and the reason for the dismissal stated by the testator in the will has been realised. In this case, while the lawsuit should be dismissed in accordance with Article 459 of the Turkish Civil Code No. 743, it was not deemed correct to accept the lawsuit as written and to decide for the cancellation of the will.” The court accepted that the reason for disinheritance was fulfilled for the heir who was extremely indifferent to the heir, who hung up the phone and did not open the door. ”
BREACH OF FAMILY LAW OBLIGATIONS
When we look at the phrase “if the legislator has not fulfilled his obligations arising from family law to a significant extent” in the 2nd subparagraph, we should immediately look at Articles 364 and 322 of our Civil Code.
Article 364- Everyone is obliged to provide alimony to his/her senior and junior relatives and siblings who will fall into poverty if he/she does not help them.
Article 322- Parents and children are obliged to help each other, to show respect and understanding and to observe family honour as required by the peace and integrity of the family.
Another obligation is the obligation of loyalty between spouses. Of course, the act of adultery, which is a reason for divorce, will constitute a reason for the spouses.
The legislator states that “. If he/she has not fulfilled his/her obligations to a significant extent.” Again, the judge will appreciate whether these obligations have been fulfilled or not. The violation of these obligations must be both objectively and subjectively significant.
A WILL SHOULD BE DRAWN UP BASED ON THE GROUNDS OF EXCLUSION
The reasons for penal disinheritance are as much as those mentioned above. For disinheritance, a unilateral death-dependent disposition based on these reasons must be made. This generally leads us to the testament. However, it is exceptionally included in the unilateral content of the inheritance contract. This will can be any kind of will. Formal will, handwritten will, verbal will. But in general, handwritten and official wills are encountered.
The reason for exclusion in the will should be clearly stated. In other words, some general expressions are not enough. For example, statements such as “violated family obligations” and “committed a serious offence against me” are not sufficient. The action causing the exclusion must be clearly stated. Otherwise, we may be faced with the cancellation of the testamentary disposition and the excluded person may claim his/her reserved share.
When we look at Article 512 of our Civil Code regarding who will have the burden of proof when the reason for the exclusion is not clearly stated or when the excluded heir files a lawsuit for the cancellation of the testamentary disposition;
Article 512- Disinheritance is valid only if the heir has specified the reason for disinheritance in the relevant disposition.
If the person excluded from inheritance objects, it falls to the heir or testamentary creditor who benefits from the exclusion to prove the existence of the specified reason.
If the existence of the reason cannot be proved or if the reason for the exclusion 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 the exclusion, the exclusion shall be invalid.
We see that the burden of proof falls on the heirs who benefit from the exclusion.
When we look at paragraph 1, although it may be inferred that the disposition of disposition is invalid if the reason for the disposition is not shown, when we look at paragraph 3, we see that even if the disposition of disposition is invalid, the disposition will be fulfilled except for the reserved share of the heir.
The disinherited person may claim his/her reserved shares through the equalisation lawsuit. However, if he/she wants to get his/her full share of the inheritance, if the will has formal defects or if the heir who made the will was incapacitated at the time of making this will, the heir who was excluded can obtain the entire inheritance share by requesting the cancellation of the testamentary disposition.
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