The fact that a will has been read out in court does not mean that the dispositions it contains take effect automatically. An action for the enforcement of a will is a form of action designed to secure the actual implementation of the provisions set out in a will whose validity is not in dispute. What is examined is not whether the will is valid, but whether the intention expressed by the testator has in fact been carried into effect.
The situation frequently encountered in practice is this: the will has been duly opened by the Civil Court of Peace and read to the interested parties; yet the title to the bequeathed immovable property has not been transferred, the money left has not been paid, or the obligation imposed on the person charged with the legacy has not been performed. The person entitled is left with a right recognised on paper but incapable of being exercised in fact. An enforcement action closes precisely that gap.
In this briefing note we examine, from a practical standpoint, the circumstances in which an enforcement action arises, the conditions required, the persons with standing to bring it, the time limits to which it is subject and the consequences of the judgment.
What Is an Action for the Enforcement of a Will?
An enforcement action is an action for performance brought in order to secure the discharge of the obligation provided for in a valid disposition upon death. The object of the action is not to review the legal validity of the will, but to ensure that the testator’s final intention is actually carried out.
The statutory basis of this action is Article 600 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 600
“Upon the opening of the succession, the legatee acquires the right to demand delivery of the thing bequeathed.”
The wording of the provision deserves attention. The legislature has conferred on the legatee not a right of ownership directly, but a right to demand performance. Accordingly, even where a particular immovable, a sum of money or a movable has been bequeathed by will, ownership of that asset does not pass automatically to the beneficiary upon the death of the testator. The beneficiary must call upon the heirs, or upon the person charged with the legacy, to perform the obligation forming the subject of the legacy.
This distinction becomes decisive in the case of specific legacies in particular. Where the testator has left one of his immovables to a third party, the land registry directorate will not of its own motion register the property in the beneficiary’s name. If the heirs are unwilling to effect the transfer, the judgment obtained by the beneficiary in an enforcement action brought under Art. 600 of the Turkish Civil Code No. 4721 forms the basis of registration.
In short: the right that arises on the opening of the will becomes enforceable only by means of an enforcement action.
The Distinction Between Opening and Enforcing a Will
Although these two institutions are frequently confused, their functions are entirely different.
The opening of a will is the procedure by which, following the death of the testator, the will is read out by the Civil Court of Peace and notified to the interested parties. This stage enables the contents of the document to be formally learned; it does not, however, produce any compulsive effect as regards the implementation of the dispositions it contains.
The enforcement of a will, by contrast, is the next stage and denotes the actual performance of the dispositions. In other words, whereas the opening procedure renders the testator’s intention visible, the enforcement action renders that intention applicable both in law and in fact.
Principal Situations in Which an Enforcement Action Arises
Failure to Deliver the Bequeathed Property
The most typical ground for an enforcement action is the refusal of the heirs or of the person charged with the legacy to deliver a particular movable, monetary claim or other asset that the testator has bequeathed.
A vehicle, a bank deposit or an item of personal significance may, for example, have been left to a particular person by will. Where such assets are not transferred to the beneficiary, the person entitled may apply to the court for performance of the legacy.
Failure to Effect the Land Registry Transfer
The field in which enforcement actions are most heavily applied is that of legacies of immovable property.
As explained above, ownership of an immovable does not pass to the beneficiary automatically at the moment of death; for the transfer to take place, the heirs must carry out the necessary formalities at the land registry. Where the heirs decline to do so, the beneficiary may seek, by way of an enforcement action, a judgment ordering that the immovable be registered in his own name.
Non-Performance by the Person Charged with the Legacy
Dispositions upon death are not confined to the leaving of property; the testator may also provide for the performance of a particular obligation or for the assumption of a charge.
Making regular payments to a particular person, meeting the cost of an education or permitting the use of an asset are examples of obligations of this kind. Where the person charged with the legacy fails to perform them, the beneficiary acquires the right to bring an enforcement action.
Obstruction of Implementation by the Heirs
In some disputes the heirs effectively block implementation by asserting that the will is invalid, or by refusing to recognise the beneficiary’s right at all.
Even where there is no final judgment annulling the will, obstruction of this kind by the heirs, whether factual or legal, may render performance of the dispositions impossible. In such a case the beneficiary may have recourse to an enforcement action in order to have the right arising under the will established and performed.
Conditions Required for Bringing the Action
Existence of a Valid Will
The first condition for an enforcement claim to be entertained is the existence of a legally valid will. The will may have been executed before a public officer, in the testator’s own hand or orally; whatever its form, however, it must satisfy the formal requirements laid down in the Turkish Civil Code No. 4721.
Where the will is invalid or has been annulled, no enforcement action may be brought. The function of the action is to secure the implementation of a disposition whose validity has been accepted.
The Will Must Have Been Opened
Pursuant to Article 595 et seq. of the Turkish Civil Code No. 4721, a will is opened by the Civil Court of Peace after the death of the testator and read to the interested parties.
Completion of that procedure is required before an enforcement claim may be made. It is not possible to speak of implementing a will whose contents have not been formally disclosed.
The Will Must Be Capable of Producing Effect
For an enforcement claim to succeed, the will must be capable of producing legal consequences. In practice the courts assess this point separately, in particular where an action for annulment of the will has been brought or where there is a serious dispute as to validity.
When an enforcement claim is made it is therefore required that there be no judgment of annulment standing in the way of implementation.
The Legacy Claim Must Be Due
Under Art. 600 of the Turkish Civil Code No. 4721, the beneficiary acquires the right to demand delivery of the thing bequeathed upon the opening of the succession. Where, however, the will provides for a time limit, a condition or a suspensive stipulation, the claim falls due only when those stipulations are fulfilled.
An action brought before the claim falls due may be characterised as an action brought prematurely. Before having recourse to the courts it should therefore be examined separately whether the claim has become capable of being demanded.
Who May Bring the Action?
The Legatee
Within the meaning of Art. 600 of the Turkish Civil Code No. 4721, the legatee is the person in whose favour a particular asset, sum of money, right or benefit has been left by will, and who has the right to demand that the disposition be performed.
Where the obligation forming the subject of the legacy is not performed by the heirs or by the person charged with it, the beneficiary may bring an enforcement action seeking that his right be given effect.
The Appointed Heir
By will the testator may appoint one or more persons as heirs to the whole of his estate or to a particular share of it. An appointed heir acquires not a particular claim but the status of heir directly, and enters into the estate as a universal successor.
Where the other heirs do not recognise that status or fail to hand over the share of the estate, the appointed heir may likewise make an enforcement claim.
The Beneficiary of a Specific Legacy
Beneficiaries of specific legacies are in practice the group that most frequently brings enforcement actions.
Where the testator leaves a particular immovable, vehicle, bank account or claim to a person, that person acquires the status of beneficiary of a specific legacy. Since ownership of the asset forming the subject of the legacy is not acquired automatically on death, however, recourse to the courts may become necessary where delivery is not made or the land registry transfer is not effected. In the case of legacies of immovable property in particular, enforcement actions coupled with a claim for registration in the land registry are very commonly seen in practice.
Where There Is More Than One Person Entitled
It is possible for more than one person to benefit from the same disposition. In that case those entitled may bring the action jointly, or may bring separate actions each seeking performance of the part falling to his own share.
Where, however, the will requires interpretation, where there is doubt as to the determination of the shares, or where a conflict of interest arises between those entitled, it may be necessary to join all the interested parties to the proceedings. In multi-party disputes it is therefore important that the litigation strategy be devised according to the particular features of the case.
Statute of Limitations and Time Limits
The Ten-Year Limitation Period
Since an enforcement action is directed towards the beneficiary obtaining the claim arising under the will, it is not a right that may be exercised indefinitely. The statute of limitations applicable to legacy claims is specifically regulated in Article 602 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 602
“A legacy claim against the person charged with the legacy becomes time-barred on the expiry of ten years running from the date on which the legatee learns that the will has been opened and that he is entitled under it.”
Where the legacy claim is founded on a right in rem, by contrast, the rights of action attaching to rights in rem are reserved. The limitation regime to be applied must therefore be determined separately according to the nature of the particular case.
When Time Begins to Run
The limitation period runs not from the date of the testator’s death, but from the date on which the person entitled learns both of his claim and of the person answerable for it.
In practice that moment will usually correspond to the date on which the will was opened and notified to the interested parties, or on which its contents were learned. The moment of knowledge must nevertheless be established separately in each case. Where a will does not come to light for a long period, or where the person entitled learns of the position much later, the starting point may differ considerably.
Events That Interrupt the Limitation Period
A legacy claim is subject to the general provisions on the interruption of the limitation period.
Circumstances such as acknowledgement of the debt by the debtor, part payment, the bringing of an action by the creditor or the commencement of enforcement proceedings interrupt the limitation period and cause time to begin running afresh.
A beneficiary who does not pursue his right over a long period may accordingly suffer its loss; acts interrupting the limitation period, by contrast, serve a critical function in preserving it.
The Course of the Proceedings
Subject-Matter and Territorial Jurisdiction
In enforcement actions the court with subject-matter jurisdiction is, as a rule, the Civil Court of First Instance. Although the civil courts of peace conduct the opening of a will, they have no jurisdiction to determine disputes arising from its implementation.
As regards territorial jurisdiction, under Art. 576 of the Turkish Civil Code No. 4721 the court of the testator’s last place of residence has exclusive jurisdiction. The action must therefore be brought before the civil court of first instance at the testator’s last place of residence.
Constitution of the Parties
Standing to sue belongs, as a rule, to the holder of the right arising under the will, that is to say to the legatee or to the appointed heir.
On the respondent side stand the heirs, as the persons charged with the legacy, or those otherwise answerable for performing the disposition. Depending on the nature of the right forming the subject of the legacy, it may be necessary to join all the heirs to the action. In claims for registration in the land registry in particular, it is important that all persons appearing as rightholders in the land register be parties to the proceedings.
Evidence and Proof
The evidence at the centre of the proceedings is the will itself. In addition, the court order relating to the opening of the will, the certificate of inheritance, civil registry records, land registry and bank records and other official documents may also be used in evidence.
The court examines first the existence and validity of the will, and then whether the claimant holds a right arising from that disposition. Finally, it assesses whether the obligation forming the subject of the action has been performed.
Court Fees and Costs
The fee payable varies according to the nature of the claim. Where registration of an immovable or the transfer of a particular asset is sought, an ad valorem fee may arise.
The costs of the proceedings are, under the general rule, borne by the party who is unsuccessful in the action. The fees of court-appointed experts, the costs of on-site examination and the expenses of service are also assessed on that basis.
Appeals
Judgments of the court of first instance may, where the statutory conditions are met, be appealed. As regards judgments of the regional court of appeal, an appeal on points of law may lie having regard to the nature of the judgment and the value of the claim.
Once the judgment becomes final, the ruling on enforcement becomes capable of execution. In files in which registration in the land registry has been ordered, the transfer is completed by applying to the relevant land registry directorate after the judgment has become final.
Legal Consequences of an Enforcement Judgment
Annulment of Title Deed and Registration
One of the most important consequences of an enforcement action is that registration of the bequeathed immovable in the name of the person entitled can be secured.
Where the testator has bequeathed an immovable but the heirs do not effect the transfer, the enforcement judgment given by the court forms the basis for entries in the land register. Once the judgment becomes final, registration of the immovable in the beneficiary’s name becomes possible. For this reason enforcement actions are in practice often brought together with claims for annulment of title deed and registration.
Transfer of Movables and Other Assets
The subject of a legacy is not confined to immovables; vehicles, bank accounts, company shares, negotiable instruments and other assets may equally be bequeathed.
Where the court gives an enforcement judgment, the person charged with the legacy becomes obliged to transfer the asset in question to the person entitled. If the terms of the judgment are not complied with, recourse may be had to enforcement proceedings based on a judgment.
Recovery of Legacies of Money and Receivables
Where the testator has bequeathed a particular sum or a claim, the enforcement judgment enables the beneficiary to demand and recover it.
If, for example, TRY 500,000 has been left to a person by will but the heirs have not made payment, the judgment given in an enforcement action has the character of an enforceable title and may form the basis of enforcement proceedings. Bank deposits, claims and other monetary assets may likewise be transferred to the person entitled in accordance with the judgment.
Effect on the Division of the Estate
Enforcement may have a direct bearing on the division of the estate, since performance of the disposition alters the extent of the assets available for division.
In the case of specific legacies in particular, the remaining assets are divided among the heirs once the value forming the subject of the legacy has been taken out of the estate. If it is contended that implementation has impaired the rights of heirs entitled to a reserved portion, an action for abatement may also arise where the conditions are met.
As will be seen, an enforcement action produces consequences affecting not only the relationship between the beneficiary and the heirs, but also the manner in which the estate is divided and the shares the heirs will receive.
Independent Legal Assessment
Although an enforcement action may appear to be a technical claim for performance, in practice it is often intertwined with claims for annulment of the will, for abatement and for annulment of title deed and registration. The correct characterisation at the outset therefore determines every subsequent stage.
When mapping out a course of action in a particular dispute, the following matters should be given priority:
- Reviewing the will as to its formal requirements and assessing the risk of annulment at the outset
- Establishing whether the claim concerns a specific legacy or the appointment of an heir
- Documenting the point from which the limitation period begins to run, by reference to the date of knowledge
- Where an immovable is concerned, expressly pleading the claim for registration in the statement of claim
- Analysing in advance the risk of abatement should the reserved portion have been infringed
Independent Legal advises on and conducts succession disputes at every stage, from the review of the will to the execution of the enforcement judgment.