The holographic will, one of the forms of will recognised by the Turkish Civil Code No. 4721, allows the deceased to record his final wishes in his own handwriting, without the participation of a public official or of witnesses. In that respect it is the simplest and most readily accessible form of disposition upon death.
The price of that convenience, however, is strict adherence to form. The absence of even one of the required elements — that the document be handwritten from beginning to end, that it bear a date and that it be signed — may result in the will being treated as invalid. It is by no means rare in practice for the intention of the deceased to go unrealised because of a formal deficiency.
In this briefing note we address in detail the definition of the holographic will, the procedure by which it is made, the conditions required for its validity, the methods that may be followed in keeping it safe, the circumstances in which it may become the subject of annulment, and how it is put into effect following the death of the deceased.
The Concept of the Holographic Will
A holographic will is a disposition upon death in which the deceased sets out his final wishes in his own handwriting, without the participation of any public official or witness. This form, regulated in Article 538 of the Turkish Civil Code No. 4721, takes effect only where the prescribed formal conditions are satisfied.
The essential element defining this form of will is that the text has issued entirely from the hand of the deceased. Where it is prepared in accordance with the conditions required by the law, a holographic will produces the same legal consequences as an official will.
Who May Use This Route?
Article 502 of the Turkish Civil Code No. 4721 affords the opportunity to make a will to every person who has the capacity of discernment and has completed the age of fifteen. The capacity required for a holographic will may therefore be reduced to two elements: that the person has completed the age of fifteen and that he possesses the capacity of discernment at the moment of the disposition.
Persons meeting these two conditions may prepare their wills without obtaining permission or approval from any public authority.
Comparison with the Official Will
The fundamental distinction between the two forms emerges in how the document is brought into being. Whereas an official will is drawn up before a notary or other authorised public official, with the participation of witnesses as well, the deceased prepares a holographic will on his own.
A holographic will is therefore both less onerous and less costly. In return, the likelihood of the document being lost, of alterations being made to it, or of its invalidity being asserted on the ground of non-compliance with form is far higher.
An official will, by contrast, is created under the supervision of the public authorities and so carries greater evidential weight; correspondingly, the number of disputes arising in practice as to its validity is small.
Procedure for Making a Will and the Formal Conditions Required
The basis of the holographic will is Article 538 of the Turkish Civil Code No. 4721. That provision makes the effectiveness of the document dependent on a series of formal conditions being satisfied in full; the absence of even one of those conditions may render the will invalid. The elements required in a valid holographic will are as follows: that the whole of the text be created in the handwriting of the testator, that the document include a date, that a signature be present, and that the intention of the deceased be set out in a manner leaving no room for hesitation.
The Text Must Be Handwritten in Its Entirety
The will must be created in the deceased’s own handwriting from its first line to its last. A part of the text being written by another person, or added subsequently, may give rise to argument as to the validity of the document.
For that reason the whole of the document must have issued from a single pen, in the handwriting of the deceased.
The Date Must Be Stated
The document must bear a date including the day, the month and the year. The date makes it possible to establish the day on which the will was written and to verify whether the deceased possessed the capacity to make a will as at that day.
The date not being written at all, or being recorded in a way that gives rise to hesitation, may in some circumstances result in the invalidity of the will.
A Signature Must Be Present
For the will to take effect, the deceased must sign the document. The signature is one of the most decisive elements showing that the statements in the text belong to the deceased and reflect his final intention.
As a rule the signature appears at the end of the text and must without exception be made by hand. The use of a seal, the affixing of a fingerprint, or approval by means of a signature stamp is a ground of invalidity.
The Intention Must Be Expressed Clearly
It must be possible to understand from the content of the text, without any doubt, what the deceased intended. That the expressions used give rise to no hesitation is decisive in preventing disputes that may arise after the death.
Wording that is vague, internally contradictory or not amenable to interpretation makes the will difficult to apply in practice.
Texts Prepared by Computer, Typewriter or Printout
The answer to be given to a question along these lines is in the negative. Since the whole of the text must be created in the handwriting of the deceased, documents written on a computer, prepared on a typewriter, or printed out and then signed do not count as holographic wills.
Accordingly, a text prepared in digital form and merely signed at the foot carries no legal value as a holographic will.
Safekeeping of the Will
For a holographic will to be valid it need not be drawn up before a notary or deposited with a public institution. The deceased may keep the document he has prepared, in compliance with the formal conditions required by the law, wherever he wishes.
Nevertheless, since there is a possibility that the document will not come to light after the death, or will be lost or destroyed, careful selection of the method of safekeeping is important.
Keeping the Will at Home
The deceased may keep his will at home or among his personal effects; there is no provision in the law preventing this.
The possibility, however, that the document cannot be found after the death, that it is destroyed inadvertently, or that it is concealed by interested persons makes this method risky.
Deposit with a Notary
The deceased may deposit the holographic will he has prepared with a notary for safekeeping. The existence of the document is thereby entered in an official record and the danger of loss is largely removed.
In practice this method is preferred in particular by persons whose assets are of significant size.
The Danger of Loss and Destruction
The most conspicuous weakness of the holographic will is that it is open to being lost or made away with. If the document cannot be found after the death, it may not be possible to give effect to the final wishes of the deceased.
It is therefore advisable that the will be kept in a secure place and that trusted persons be made aware of the existence of the document.
Bringing the Will to Light After the Death
Every will that comes into a person’s hands after the death of the deceased must be delivered to the Civil Court of Peace without delay, irrespective of whether it is valid.
The court opens the document, reads its content, notifies the interested persons and initiates the necessary legal steps. Concealment of the document by the person holding it, or a refusal to deliver it up, may give rise to legal liability.
Securing the delivery of the will to the competent authority after the death is therefore just as important as keeping it safe.
Grounds of Invalidity
Whether a holographic will stands depends on compliance with the formal conditions laid down in the Turkish Civil Code No. 4721. Where the required elements are absent, or where it emerges that the document does not reflect the true intention of the deceased, the will may be made the subject of an action for annulment.
In practice, wills of this kind are brought before the courts most often on account of formal deficiencies and disputes as to capacity.
Absence of a Date
The law requires a holographic will to bear a date showing the day, the month and the year.
The date serves to determine the day on which the document was made and whether the deceased possessed the capacity to make a will on that date. The complete absence of this element, or its being written in a manner giving rise to serious hesitation, may affect the validity of the will.
Absence of a Signature
For the document to take effect it must have been signed by the deceased. The signature is among the fundamental elements demonstrating that the will emanates from the deceased and carries his final intention.
A holographic will bearing no signature is therefore, as a rule, not regarded as valid.
The Text Not Being Handwritten in Its Entirety
The document must have been created in the handwriting of the deceased from beginning to end.
Texts created on a computer, documents written on a typewriter, and writings containing passages that have issued from the pen of third parties do not have the character of a holographic will. The whole of the text is required to have issued from the hand of the same person.
Allegations of Duress, Mistake and Deceit
The will must have been written by the deceased of his free will. Wills made under the influence of duress, intimidation, deceit or fundamental mistake may form the subject of an action for annulment.
A court faced with allegations of this kind decides the fate of the will by assessing the circumstances of the particular case and the evidence submitted.
Absence of the Capacity of Discernment
The deceased is required to have possessed the capacity of discernment on the date the will was made.
In practice it is frequently asserted, by reference to advanced age, dementia, Alzheimer’s disease or severe psychiatric conditions, that the capacity to dispose was absent. In such cases the court reaches its conclusion by assessing medical records, witness accounts and reports of court-appointed experts together.
The presence of one of the grounds listed does not result in the will becoming ineffective of itself. The document may, however, be rendered wholly or partly invalid at the conclusion of an action for annulment of the will brought by the interested persons.
Challenging a Will and the Action for Annulment
Even where a holographic will has been made in compliance with the formal conditions required by the law, it may become the subject of an action for annulment of the will if certain grounds are present. The allegations most frequently advanced in practice are that the document does not belong to the deceased, that the formal elements are incomplete, and that the deceased lacked the capacity to dispose.
Unlike the position with an official will, the document here has issued directly from the pen of the deceased, so that more disputes arise as to whose handwriting it is and as to the authenticity of the document.
Standing to Bring the Action
An action for annulment may be brought by persons having a legal interest in the setting aside of the will.
Within that framework, statutory heirs, appointed heirs, legatees and other interested persons who could obtain a right over the inheritance if the will were annulled have the power to bring an action.
Handwriting Examination and Court-Appointed Expert Assessment
The dispute most frequently encountered with this form of will centres on whether the document was truly written by the deceased.
Where such an allegation is advanced, the court may order a handwriting examination. In the course of that examination the will is compared with specimens of writing and signature known to belong to the deceased, and the results are recorded in a report of a court-appointed expert.
Whether the deceased possessed the capacity of discernment on the date the document was made may likewise be assessed through medical records, witness statements and expert reports.
Preclusive Periods
An action for annulment must be brought within certain preclusive periods.
The action must be instituted within a period of one year from the moment the ground of annulment and the will became known. The period is 1 year from the date on which the claimant learned of the disposition, of the ground of annulment and of his own entitlement; and in any event, running from the date on which the will was opened, 10 years as regards respondents acting in good faith and 30 years as regards respondents not acting in good faith.
If those periods are missed, annulment of the will cannot be sought even if a ground of annulment is in fact present.
Since holographic wills are among the forms of disposition giving rise to the greatest number of disputes in practice, it is important that a legal assessment be carried out where there is any doubt as to validity and that recourse be had to the available actions within time.
The Opening Process After the Death
A holographic will does not become operative of itself upon the death of the deceased. For the document to produce legal consequences it must first be submitted to the competent court and the opening procedure laid down in the law must be completed.
Under the Turkish Civil Code No. 4721, every will that comes into a person’s hands after the death of the deceased must be delivered to the Civil Court of Peace, irrespective of its validity.
Submission to the Civil Court of Peace
After the death, the person holding the document is obliged to deliver the will without delay to the Civil Court of Peace at the last place of residence of the deceased.
That obligation is independent of any personal view as to whether the document is valid. The will must be produced to the court even if it is thought to be invalid.
The Opening and Reading of the Will
The court examines the document submitted to it and conducts the opening procedure. At this stage the content of the will is read out and entered in the record.
At the opening the court does not, as a rule, make any definitive assessment as to the validity of the will. The purpose of the procedure is solely that the document be officially brought forward and made known to the interested persons.
Notification to the Interested Persons
Following the opening procedure, the content is notified to the statutory heirs, the appointed heirs and the other interested persons.
By that notification the interested persons learn the content of the will and may, if they see fit, exercise their rights to bring an action for annulment, for abatement or for the implementation of the disposition.
Once the opening and notification stages have been completed, and provided there is no impediment, the will proceeds to implementation and the final wishes of the deceased begin to produce their legal consequences.
The Independent Legal Assessment
Attractive though the holographic will may appear because of the freedom with which it is prepared, it is one of the most concentrated sources of inheritance disputes. Our experience shows that most actions for annulment arise not from the content of the disposition but from the date being written incompletely, from part of the text having issued from someone else’s pen, or from an inability to document capacity at the moment the will was made. A will should therefore be written with an eye to proceedings that may later be conducted upon it.
Where a holographic will is being made in a particular case, or the fate of an existing document is being assessed, we recommend that priority be given to the following matters:
- Ensuring that the whole of the text is handwritten by a single hand, without interruption, and that nothing has been added subsequently
- Writing the day, the month and the year clearly, and, where texts are made at different times, keeping the sequence of dates traceable
- Documenting the capacity of discernment by means of a medical report obtained close to the date the will was made
- Framing the terms of the disposition so as to be certain beyond the need for interpretation and with regard to the balance of the reserved portions
- Depositing the document with a notary and making a trusted person aware of its existence
- Transmitting the document to the Civil Court of Peace without delay after the death and monitoring the one-year period prescribed for annulment
Independent Legal provides advisory services and conducts litigation at every stage of inheritance law, from the preparation of dispositions upon death to the conduct of proceedings for the opening, annulment and execution of a will.