Under the Turkish Civil Code No. 4721 an estate passes as a single whole at the moment of death; the question of who acquires that body of assets is not, however, answered of its own accord. In order to establish that status against third parties, those who acquire the estate need a separate document, namely the certificate of inheritance. Concealment of an heir is the suppression, at the time that document is obtained, of the status of a person who is an heir, whether by the other heirs or by third parties, and the unlawful transfer and distribution of the estate according to that incomplete picture. In most cases the situation takes the form of one or more of the heirs being disregarded by the others; the document obtained in non-contentious proceedings, which does not reflect the true position, then becomes the basis of the transfer and of the distribution.
In practice this is encountered most often in wrongful registration and transfer transactions concerning immovable property registered in the name of the deceased. An heir whose share has been taken away in this manner may recover their entitlement by way of an action for concealment of an heir.
What Is an Action for Concealment of an Heir?
This action denotes the legal remedy available to a person whose right of inheritance has been extinguished, brought in order to obtain the share falling to them. It is not a type of action that has found a place in the Turkish Civil Code No. 4721; its framework has been drawn in legal scholarship and its content shaped by judicial decisions.
Precondition: Obtaining a Contested Certificate of Inheritance
The Court of Cassation requires, as a precondition in actions of this kind, that a contested certificate of inheritance be obtained beforehand. Accordingly, the action should be brought once that certificate has been secured. Even so, the case law holds that where the action has been brought directly without such a certificate it is not to be dismissed; the claimant must be granted time to remedy the deficiency.
Where, therefore, an heir has not been shown on the existing certificate of inheritance or has deliberately been left out of it, that document must first be rebutted and set aside. The fact that the document is contrary to the true position, that certain heirs have been concealed or have never been entered on it, may be proved by any form of evidence.
For further detail on the subject, our note entitled “What Is a Certificate of Inheritance?” may be consulted.
Action for Annulment of Title Deed and Registration Based on Concealment of an Heir
Registrations effected on the basis of a certificate that does not include all of the heirs do not correspond to the true state of the rights and therefore amount to wrongful registration. In such a case, those whose status and share are established by a newly obtained certificate of inheritance may bring an action for the correction of the land registry and seek to have the entry brought into line with the true position.
On the approach of the Court of Cassation, where an action for the correction of the land registry has been brought, the parties’ status as heirs is treated as a preliminary issue and those concerned are given the opportunity to produce a contested certificate of inheritance. Once it is established that the claimants are heirs and possess the capacity to be a party, the merits of the dispute are to be examined and judgment given according to the outcome of that examination.
Courts with Subject-Matter and Territorial Jurisdiction
Since concealment of an heir arises predominantly in actions for the correction of the land registry, where the entry is wrongful because it rests on a certificate of inheritance that does not reflect the true position, subject-matter jurisdiction lies with the civil courts of first instance pursuant to Article 2 of the Code of Civil Procedure No. 6100.
Because the dispute arises from a transaction carried out before the land registrar and concerning rights in rem over immovable property, Art. 12 of the Code of Civil Procedure No. 6100 governs territorial jurisdiction; the action is heard by the court of the place where the immovable property is situated. That jurisdiction is exclusive and constitutes a procedural requirement. A plea of lack of jurisdiction may accordingly be raised by the parties at any stage of the proceedings and is also taken into account by the court of its own motion.
Standing to Be Sued
Claims for annulment of title deed and registration based on concealment of an heir may be directed only against the registered owner. Save where there is mandatory joinder of parties, a person cannot be given the status of a party by being impleaded in the course of the proceedings, nor may judgment be given in respect of such a person.
Statute of Limitations and Time Limits
The decisions of the Court of Cassation accept that actions founded on an allegation of concealment of an heir and concerning rights in rem over immovable property are not subject to any statute of limitations or preclusive period and may be brought at any time.
Litigation Costs and Court Fees
In calculating court fees and litigation costs the Court of Cassation proceeds on the footing that the value of the action is the value of the immovable property, and holds that the amount to be taken as the basis is the value corresponding to the share of the heir or heirs bringing the action, costs and fees being awarded on that amount.
Independent Legal Assessment
In concealment of an heir files, the element that determines the outcome is more often the correct sequencing of the procedural steps than the argument on the merits. A process begun without obtaining a contested certificate of inheritance leads to a loss of time; and if the immovable property has been transferred to third parties, the question of good faith also enters the picture and complicates the dispute.
In a concrete file we recommend that the following points be addressed first:
- Examining the date on which the existing certificate of inheritance was obtained and the declarations on which it was based
- Directing the proceedings for a contested certificate of inheritance against the correct persons
- Establishing from the outset the chain of transfers in the land register and the identity of the current owner
- Stating the claim clearly in the pleading so that it is confined to the share in question
- Calculating the value on which the fee is based by reference to the inheritance share, so as to avoid the risk of an underpaid fee
Independent Legal provides advisory services and conducts litigation across the whole of the process in disputes arising from the concealment of a person’s status as an heir, from the annulment of the certificate of inheritance to the conduct of the action for annulment of title deed and registration.