Disinheritance, referred to in practice as exclusion from the inheritance, is an exceptional institution that prevents an heir with a reserved portion from reaching the share set aside for them where the family bond has been gravely damaged.
The legislature has confined this possibility to a closed list of situations. The Turkish Civil Code No. 4721 provides for two distinct types of disinheritance: punitive and protective. Where certain conduct on the part of the heir with a reserved portion has profoundly injured the family bond, punitive disinheritance comes into play, and where this route is taken the person concerned loses the status of heir. Protective disinheritance pursues a different aim: half of the reserved portion of a descendant who is unable to pay their debts is left to that descendant’s own issue. The share of an heir against whom a certificate of insolvency exists is thus prevented from flowing entirely to the creditors, and the way is opened for the grandchildren to benefit from the estate.
Disinheritance can only be effected by way of a testamentary disposition, that is, by drawing up a contract of inheritance or a will. The testator must state the ground of disinheritance expressly in that disposition. It should also not be forgotten that, where the conditions are met, the disinherited person may bring an action for abatement or an action for annulment.
The Concept of Disinheritance
Disinheritance is an exceptional arrangement that prevents heirs with a reserved portion from obtaining all or part of the share set aside for them. Before turning to the grounds, it is necessary to consider whom this institution concerns. Those holding the status of heir with a reserved portion are the descendants of the testator, that is, their children, grandchildren and great-grandchildren, together with their mother and father and their surviving spouse.
The reason the legislature affords these persons a guaranteed share is the close blood tie and family relationship between them; their shares were not intended to fall below the prescribed proportion. Certain conduct on the part of such an heir may, however, shake the very bond that is sought to be protected, or even destroy it altogether. In such a picture, providing a reserved portion in that person’s favour loses its meaning and the institution of disinheritance may come into operation.
Grounds for Disinheritance
As noted above, the conduct of an heir with a reserved portion may form the basis for disinheritance. This type is termed punitive or penal disinheritance; the aim is to prevent an heir who has profoundly shaken the family bond from benefiting from the estate.
Alongside this, the legislation also provides for protective disinheritance. Here the testator’s concern is that the share falling to a descendant unable to pay their debts will pass entirely into the hands of the creditors. For example, the right of a child who, because of their father’s heavy burden of debt, would be unable to reach the inheritance coming from their grandfather may be protected in this way.
Punitive (Penal) Disinheritance
Article 510 of the Turkish Civil Code No. 4721 governs the circumstances in which the testator may disinherit an heir with a reserved portion:
Turkish Civil Code No. 4721 Art. 510
“In the following cases, the deceased may disinherit an heir with a reserved portion by a testamentary disposition:
1. Where the heir has committed a serious criminal offence against the deceased or against one of the deceased’s relatives,
2. Where the heir has failed to a substantial degree to perform the obligations arising from family law towards the deceased or the members of the deceased’s family.”
The situations set out in the provision are a closed list; there is no possibility of invoking the institution of disinheritance on any ground other than these two.
As can be seen, punitive disinheritance rests on the damaging of the family bond between the heir and the testator as a result of the heir’s conduct. For instance, an heir’s persistent and grave insults directed at the testator may be regarded as a ground of disinheritance, since in such a situation the affection and respect required by a close family relationship will be taken to have disappeared.
Commission of a Serious Criminal Offence
The first of the grounds of disinheritance is the commission of a serious criminal offence by the heir; the legislation is, however, silent as to the nature of that offence. The Code does not indicate which acts are to be regarded as serious offences. The assessment must therefore be made having regard to the circumstances of the individual case, and whether the act constitutes a ground of disinheritance must be determined within that framework. Where the heir’s criminal conduct has damaged the family bond or has caused that bond to be severed, the ground may be taken to have materialised.
The point to be underlined here is that the act must genuinely amount to an offence for the purposes of the provisions of the Turkish Penal Code No. 5237. The weakening of the family relationship following the heir’s accidental breaking of a vase to which the testator attached great value cannot be treated as a ground of disinheritance.
Breach of Obligations Arising from Family Law
The second ground is the heir’s substantial neglect of the duties arising from family law. The child’s duty to care for their parents and the duty of fidelity between spouses may be given as examples of such duties. Disinheritance may arise in respect of the party who acts in breach of these obligations. In the same way, a mother’s or father’s failure to perform their maintenance obligation towards their child is also regarded as a breach of duties arising from family law; in such a situation it may be possible for the child, in the position of testator, to disinherit the father who has failed to pay the maintenance.
Here too it will be for the judge to assess, having regard to the circumstances of the case itself, whether the ground has materialised.
The grounds of punitive disinheritance frequently overlap with the cases of disqualification from inheritance. For example, an intentional wounding of the testator by an heir with a reserved portion may be assessed both as a ground of disinheritance and as a ground of disqualification.
Protective Disinheritance
Protective disinheritance is governed by Article 513 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 513
“The deceased may disinherit, in respect of half of the reserved portion, a descendant against whom a certificate of insolvency has been issued.”
The purpose of the provision is to prevent the entire share falling to a descendant from being transferred to the creditors in cases where that descendant is in a state of inability to pay. Otherwise it would become impossible for the own issue of the heir with a reserved portion to benefit from the estate.
The legislature has here struck a balance between the competing interests and has allowed only half of the reserved portion belonging to the disinherited descendant to be allocated to that descendant’s issue. As can be seen, there is no question of the whole share being transferred; since it would not accord with equity for the creditors to receive no satisfaction whatsoever, the allocation has been confined by the provision to half of the reserved portion.
Allocation of Half the Share to the Descendants
As stated, in protective disinheritance half of the share of the disinherited descendant must be allocated to that descendant’s living or unborn children. To give an example, a grandfather whose son is unable to pay his debts and who has one child must allocate half of the son’s share to his grandchild.
What is meant here by a “living child” is a child who is alive at the moment of the testator’s death. The concept of an “unborn child”, on the other hand, denotes a child who has at least been conceived at the moment of the testator’s death. By this expression the legislature sought to secure the inheritance rights of the unborn child as well.
Annulment of Protective Disinheritance
One matter must be emphasised: where the effect of the certificate of insolvency concerning the heir has ceased at the moment of the testator’s death — for example where the debt has been paid in full — the heir may have the disinheritance annulled. Annulment may likewise be sought where the heir’s debt does not exceed half of their reserved portion.
How Disinheritance Is Effected
The materialisation of the grounds listed in Turkish Civil Code No. 4721 Art. 510 and Art. 513 does not by itself produce disinheritance; the testator must manifest their intention to that effect. Turkish Civil Code No. 4721 Art. 510 provides that disinheritance may be effected by a testamentary disposition. What is to be understood by a testamentary disposition here is a contract of inheritance or a will. Accordingly, the act may be carried out by drawing up a contract of inheritance, or equally by a will prepared by the testator.
Disinheritance by Will
In cases of punitive disinheritance, the nature of the matter makes it unlikely that a contract of inheritance will be concluded between the parties. The testator therefore generally manifests their intention by drawing up a will. A will may be made in three forms: an official will, a holographic will and an oral will. We advise those contemplating disinheritance to opt, where possible, for the official will, which is safer in many respects.
Disinheritance by Contract of Inheritance
As regards protective disinheritance, the conclusion of a contract of inheritance is more likely. The point that must not be overlooked here is the following: concluding a contract of inheritance requires that the person be of full age, possess the capacity of discernment and not be subject to restriction of legal capacity. In this scenario too, of course, an heir with a reserved portion may be disinherited by drawing up a will.
For details on the drawing up of contracts of inheritance and wills, our note entitled “What Is the Law of Succession?” may be consulted.
Finally, the following must be underlined: the validity of the disinheritance depends on the testator stating the ground of disinheritance in the testamentary disposition they make. For example, the testator must state in their will that their heir has not been in contact with them for years and has not cared for them, and that the heir has thereby breached their duties arising from family law.
Consequences of Disinheritance
In punitive disinheritance, since the heir with a reserved portion loses their entire share, the status of heir also comes to an end. There can no longer be any question of that person benefiting from the possibilities attaching to that status.
As regards the effect of disinheritance on the testator’s freedom of disposition, a twofold distinction must be drawn. As is known, the existence of heirs with a reserved portion may constitute an obstacle to the testator disposing of their assets as they please. If the disinherited heir has their own heirs with a reserved portion — their children, for example — the share passes to them; in other words, the disinherited person is treated as having predeceased the testator and the children acquire rights over the share. Where, by contrast, the disinherited heir has no heirs with a reserved portion, the testator may dispose of that share freely.
In protective disinheritance, since the disinheritance is partial, the heir retains the status of heir with a reserved portion. They therefore participate in the division to the extent of half of their reserved portion; moreover, all the rights and obligations that the status of heir confers on the other heirs apply to them as well.
For detailed explanations concerning the effects of disinheritance on the descendants, our note entitled “The Effect of Disinheritance on the Descendants” may be consulted.
Remedies Available to a Disinherited Person
A person who considers that the grounds of disinheritance have not materialised, or who alleges that the reasons given are untrue, may bring an action for abatement. In addition, it is possible to bring proceedings seeking the annulment of the testamentary disposition effecting the disinheritance.
For detailed information on the actions available to a disinherited heir with a reserved portion, our notes entitled “What Is an Action for Abatement” and “Annulment of a Will” may be consulted.
Frequently Asked Questions
Can a testator disinherit their child?
Half of the inheritance share of the descendants, that is, of the children, constitutes a reserved portion; as a rule the testator may not interfere with that part. The exception to the rule is disinheritance. Recourse may be had to disinheritance where the descendant has committed a serious criminal offence against the testator or one of their relatives, or has gravely neglected their duties arising from family law towards the testator or a member of their family.
Who receives the share of a disinherited person?
Unless the testator has made a disposition to the contrary, the share of the disinherited person passes, on the footing that that person predeceased the testator, to their descendants if any, and if they have no descendants, to the testator’s statutory heirs. That is to say, the children of the disinherited person may acquire the right to inherit.
What is the difference between disinheritance and disqualification from inheritance?
Where the grounds set out in the Code materialise, disqualification from inheritance takes effect automatically. Disinheritance, by contrast, requires the testator to make a testamentary disposition. Moreover, while disinheritance may be applied only in respect of heirs with a reserved portion, disqualification may also arise in respect of heirs who have no reserved portion.
Can proceedings be brought against a disinheritance?
The disinherited person may bring an action seeking the annulment of the disinheritance on grounds such as that the reason given does not reflect the truth or that the act was carried out in breach of the required form.
Can a disinherited person bring an action for abatement?
Since a disinherited person cannot take a share of the estate, they have no possibility of bringing an action for abatement either.
Can a child who has been out of contact for years be disinherited?
The Code lists among the grounds of disinheritance the heir’s grave neglect of their duties arising from family law towards the testator or a member of their family. It is therefore possible to disinherit a child with whom there has been no communication for years.
Is representation by a lawyer mandatory for these matters?
Under Turkish law the parties may defend and represent themselves in person before the court; apart from a limited number of exceptions, there is no obligation to be represented by a lawyer. Nor is there any such obligation in matters relating to the law of succession. Nevertheless, given the complex structure of the legislation, where these processes are conducted by persons who are not lawyers, errors that are difficult to remedy may be made both as to form and as to substance. In order to avoid any loss of rights, it would be prudent to obtain legal support in the field of succession law before embarking on any step.
Independent Legal Assessment
Exclusion from the inheritance is one of the acts that most often fails in practice because of defects of form and of reasoning. A failure to establish the ground of disinheritance in the testamentary disposition by reference to concrete facts renders the disposition contentious from the outset. Instruments that confine themselves to abstract statements such as “we were estranged” or “he never called me” rarely survive the annulment actions that are brought.
In protective disinheritance, timing is decisive. Since the legal position of the certificate of insolvency at the moment of death directly affects the validity of the act, the picture existing on the date the disposition was drawn up and the picture at the moment the succession opens must each be assessed separately.
In an individual file we recommend that particular attention be paid to the following points:
- Setting out the ground of disinheritance in the text of the disposition in concrete terms, with dates and events specified
- Verifying, where a serious criminal offence is alleged, whether the act genuinely constitutes an offence for the purposes of the criminal legislation
- Documenting, where a duty arising from family law has been breached, that the breach meets the criteria of persistence and gravity
- Opting for an official will so as to minimise the risk of a defect of form
- Monitoring, in protective disinheritance, whether the certificate of insolvency is current and how the amount of the debt relates to half of the reserved portion
- Establishing at the outset whether the disinherited heir has descendants, for the purposes of the fate of the share
Independent Legal provides advisory and litigation services throughout the entire process, from the preparation of testamentary dispositions effecting disinheritance to the conduct of annulment and abatement actions brought against such dispositions.