The heir’s collusion, also known as the evasion of inheritance, is the transfer of the gratuitous gains made by the heir with the aim of depriving the heir of the inheritance by pretending that there is a sales contract or a contract of maintenance until death. By law, some people are determined as legal heirs and inheritance is allocated to them in certain proportions. However, in order not to realise this situation regulated by the law, people try to prevent some of their heirs from benefiting from the right of inheritance by pretending that they have sold their assets to one of their heirs before they die.
In order to be able to talk about the existence of the heir’s collusion, a number of conditions must be present. Firstly, there must be an apparent transaction. What is meant by the apparent transaction is the transaction that does not coincide with the real will of the heir, but only in order to deprive the heirs of their rights.
For example, the apparent transaction in the gratuitous gain made by the deceased to his son under the name of the sale contract is the sale contract, but the real will of the deceased is in the direction of donation. In such cases, it is usually shown as if there is a price when transferring the assets, and the assets in question are prevented from being subject to equalisation. The reason is the provision in Article 565 of the Turkish Civil Code that certain gratuitous gains will be deemed invalid and subject to annulment.
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Secondly, there must be a collusion agreement, which means that their real will is not like the apparent transaction, and they make the apparent transaction just to deceive third parties. The collusion agreement need not be in writing.
Thirdly, as stated at the beginning, the purpose of the heir is to evade property from the heirs. However, at this point, it should be noted that; if the heir has no heirs or is not aware of the heirs at the time of the collusive transaction, at this point, deception or collusion cannot be mentioned.
Finally, there must also be a hidden transaction. As mentioned in the section on the apparent transaction, the real will of the parties must be a secret transaction. In daily life, the hidden transaction is generally a donation. The parties realise the collusion of the inheritor by showing a so-called price during the transfer, without paying any price or by paying a price much lower than the actual price. In accordance with the Turkish Code of Obligations, the apparent transaction will be deemed invalid since it does not coincide with the real will of the parties, but the secret transaction is valid as a rule if it meets the formal requirements of the law.
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