Forfeiture Of Inheritance – Insolvency – Court Of Cassation Decision
T.C
JUDICIARY
14TH CIVIL COURT
ESAS NO. 2015/2607
KARARI NO. 2015/9898
DECISION DATE.05.11.2015
COURT : İvrindi Civil Court of First Instance
DATE : 13/11/2013
NUMBER : 2013/26-2013/193
At the end of the hearing held upon the petition filed by the plaintiffs’ attorney against the defendants on 08.02.2013 for the forfeiture of the inheritance; the Court of Cassation examination of the judgment dated 13.11.2013 on the acceptance of the case was requested by the defendant E… A… and it was decided to accept the petition of appeal, which was understood to be in due time, and then the file and all the papers in it were examined and considered accordingly:
DECISION
The plaintiff’s attorney, the executor A… E…’s estate was found to be insolvent and the inheritance was forfeited.
The court decided to determine that the estate was insolvent and to dismiss the inheritance by judgment.
The judgment was appealed by the defendant E.. A… attorney appealed.
Legal and appointed heirs can reject the inheritance. The inheritance is deemed to be rejected if the insolvency of the heir is clearly evident or officially determined on the date of his death. (TMK Art. 605)
In the lawsuits filed for the forfeiture of the inheritance, it is necessary to investigate whether the estate is clearly insolvent. If a certificate of insolvency is issued at the end of the execution proceedings, the estate is deemed to be insolvent. Otherwise, whether the estate is insolvent or not, the assets of the deceased should be duly inquired from banks, traffic registration directorate, tax offices, municipalities and title deed directorate etc. institutions and organizations, the receivables and debts of the deceased should be investigated by the police and the assets and liabilities should be determined in a way that does not cause any doubt, taking into account the active assets and the amount of debt subject to the proceedings.
The request for the determination that the estate is insolvent at the time of the death of the deceased is not a lawsuit for performance, but a type of lawsuit for the determination of a legal situation that constitutes an exception to the legal rule stating that “the heirs acquire the inheritance as a whole upon the death of the heir, as required by law” (Article 599/1 of the TMK), which results in the inheritance being deemed to be rejected due to the law, without the need for the heirs to make a statement of will. Due to this nature, it is subject to a flat fee and a flat attorney fee is awarded in case of acceptance or rejection.
In addition, in order to request the rejection of the inheritance pursuant to Article 605 of the TMK, it is necessary to have the authority to reject the inheritance in the power of attorney of the attorney in accordance with the second paragraph of Article 39 of the Regulation on the Implementation of the Custody, Guardianship and Inheritance Provisions of the Turkish Civil Code, and since it is understood that the power of attorney of the plaintiff’s attorney in the file does not have the authority to file a lawsuit for the rejection of the inheritance, first of all, these deficiencies should be eliminated and the merits of the case should be entered into and a decision should be made in line with the above-mentioned principles of our Chamber.
It was not deemed correct for the court to make a written judgment with incomplete examination without clearly determining the debt as of the date of the death of the executor, and the decision had to be reversed for the reasons stated.
CONCLUSION: For the reasons explained above, the defendant E.. A… attorney for the reasons explained above, the judgment is hereby reversed, the advance fee shall be refunded to the depositor upon request, and it was unanimously decided on 05.11.2015, within 15 days from the notification of the decision, the way of decision correction shall be open.