A will is a unilateral disposition upon death by which a person determines the principles according to which his or her property is to be distributed after death, the rights to be conferred on particular persons or institutions, and the manner in which his or her last wishes are to be met.
A person having recourse to such a disposition must possess a certain level of capacity, must comply with the formal rules required by statute, and must have regard to the position of heirs holding a reserved portion. Where these conditions are departed from, the will may, as a result of actions brought after death, be regarded as wholly invalid or a part of it may be rendered ineffective.
Below we examine in detail the whole of the legal procedure relating to wills.
The Concept of the Will
A will is a disposition upon death by which a person, so as to take effect after his or her death, sets out his or her last wishes concerning the property, the heirs or the persons he or she has designated. Although the document is drawn up while the deceased is alive, it produces its legal effects as a rule at the moment of death. Because of this characteristic a will is not regarded as an inter vivos transaction; it is characterised as a legal transaction upon death.
The Turkish Civil Code No. 4721 grants persons the power to dispose of their estates within certain limits. Within that framework, the deceased may by will provide for the establishment of a foundation (Turkish Civil Code No. 4721, Art. 526), designate a subsequent heir (Art. 521), appoint a substitute heir (Art. 520), attach a condition or an obligation to the disposition (Art. 515), determine that a specific item of property or a specific right be left to a specific person (Art. 517), appoint an heir (Art. 516) and disinherit one or more of his or her heirs (Art. 510).
A will is one of the most important dispositions upon death, enabling a person to determine by his or her own volition what is to become of his or her property after death and to place his or her last wishes on a secure legal footing.
Legal Character
The will, which is set out in Article 502 et seq. of the Turkish Civil Code No. 4721, is constructed as a unilateral legal transaction. For it to come into being validly, no acceptance or approval by any person, and no participation as a party to a contract, is required. The deceased may make this disposition alone by declaring his or her intention in compliance with the formal rules laid down by statute.
The will is at the same time among the rights strictly personal in nature. That characteristic makes it obligatory for the disposition to be made by the deceased in person. There is no legal possibility of a will being made through a representative, an agent or a legal representative.
Difference from the Contract of Succession
Although both fall within the category of dispositions upon death, the will and the contract of succession differ markedly as regards their legal character and the consequences they produce.
The will is a unilateral transaction and is constituted solely by the declaration of intention of the deceased. The contract of succession, by contrast, is a bilateral contract requiring corresponding and reciprocal declarations of intention by the deceased and the other party. This structural difference means that the contract of succession produces far more binding consequences than the will.
For this reason, a will is preferred in cases where there is a possibility that the deceased may change his or her mind in the future, whereas a contract of succession is preferred where a stronger legal tie is to be created between the parties.
Conditions for Making a Will
The legislature has not granted this power of disposition to everyone. The validity of a will depends on the person making it satisfying certain conditions of capacity. Those conditions are set out in Article 502 of the Turkish Civil Code No. 4721 and must be present as at the moment the disposition is made.
Turkish Civil Code No. 4721, Art. 502
“Everyone who has the capacity of discernment and has completed the age of fifteen may make a will.”
Accordingly, two conditions must be present together for a valid will: the person must have the capacity of discernment and must have completed the age of fifteen.
If either of these conditions is absent, the disposition may be rendered invalid as a result of an action for the annulment of the will brought by those concerned.
The Age Requirement
The Turkish Civil Code No. 4721 requires that the age of fifteen have been completed in order for a will to be made. The fact that a person below that age has the capacity of discernment, or that his or her legal representatives have given permission, does not alter the picture.
The practical consequence of this is as follows: the age limit applies in the same way to official, holograph and oral wills alike; a person who has not completed the age of fifteen cannot make a will, and this deficiency cannot be remedied by the approval of the mother, the father or a guardian.
The legislature has accepted that dispositions which are to take effect after death require a certain level of maturity, and on that ground has adopted the threshold of fifteen years of age.
The Capacity of Discernment Requirement
The second condition is that the person have the capacity of discernment.
The capacity of discernment denotes a person’s ability to grasp the meaning of his or her conduct and the consequences it will produce, to assess them, and to direct his or her will in accordance with that assessment. What is decisive for validity is that this ability existed on the date the will was made.
Within this framework, the person is expected to be able to take decisions free from external pressure, to form his or her intention freely, to grasp the direction in which he or she is disposing of the property, and to understand the consequences of the transaction he or she is carrying out.
A will made by a person lacking the capacity of discernment may be rendered ineffective as a result of an action for annulment brought by those concerned.
Types of Will
The Turkish Civil Code No. 4721 sets out on an exhaustive basis the forms in which a will may be made. Dispositions made without compliance with the formal rules required by statute are as a rule invalid. Under the Code, a will may be made in three separate forms: the official will, the holograph will and the oral will.
The Official Will
The official will is the type made before a public officer with the participation of two witnesses, and it is governed by Article 532 et seq. of the Turkish Civil Code No. 4721.
In practice these dispositions are made predominantly through notaries, and they may also be made before a judge of the Civil Court of Peace or a notary.
The procedure begins with the testator conveying his or her last wishes to the public officer. The text drawn up is read to the testator or is read by the testator himself or herself; where the content is found to be satisfactory, it is signed. Thereafter the witnesses too make the declarations required by statute and sign the document.
The Holograph Will
The holograph will is the type created by the testator writing out the text from beginning to end in his or her own hand, dating it and signing it. Its basis is Article 538 of the Turkish Civil Code No. 4721.
In this form there is no obligation to have a notary, a judge or witnesses present. On the other hand, the whole of the text must have issued from the testator’s own hand. Texts typed on a computer and printed out, documents prepared on a typewriter, or writings produced by third parties do not as a rule constitute a valid holograph will.
The Oral Will
The oral will is an exceptional type to which recourse may be had only in extraordinary circumstances, and it is governed by Article 539 et seq. of the Turkish Civil Code No. 4721.
Where extraordinary circumstances such as imminent danger of death, a state of war, the severing of communications or serious illness prevent the making of an official or holograph will, a person may convey his or her last wishes orally to two witnesses.
The obligation falling on the witnesses is to reduce the intention conveyed to them to writing without delay and submit it to the court with jurisdiction, or to make a declaration directly before the court.
This type of disposition is exceptional and temporary in character. If the deceased subsequently becomes able to make an official or holograph will, the oral will lapses automatically upon the expiry of one month from that date. The expiry of the one-month period brings about the termination of validity by operation of law; there is no need for a separate court decision.
Dispositions That May Be Made by Will
The Turkish Civil Code No. 4721 leaves the deceased a broad field of disposition over the estate by means of a will. Within the limits drawn by statute, the deceased may make various arrangements that will take effect after death and may shape the future of the property according to his or her own volition.
Within this scope, what the deceased may do is as follows:
- Impose obligations and conditions in favour of particular persons or institutions
- Provide for the establishment of a foundation
- Disinherit heirs holding a reserved portion where the grounds enumerated in the statute exist
- Deprive heirs who hold no reserved portion of the status of heir
- Designate a subsequent heir
- Designate a substitute heir
- Appoint an executor of the will
- Lay down rules as to how the division is to be carried out
- Bequeath a specific item of property or a specific right to a specific person
- Appoint an heir
As will be seen, the will is not a narrow transaction serving only to leave specific items of property to specific persons. By this means the deceased may determine the form of the division, order the relations of heirship and make binding arrangements on the matters he or she wishes to be carried out after death. The validity of all these dispositions depends, however, on compliance with the formal rules required by statute and with the provisions on the reserved portion.
Dispositions That May Not Be Made by Will
Broad though the deceased’s freedom of disposition may be, it is not unlimited. In order both to protect heirs holding a reserved portion and to safeguard public policy, the Turkish Civil Code No. 4721 places a number of limits on the arrangements that may be made by will.
Accordingly, the deceased may not make dispositions that impair personality rights; may not provide for obligations that are impossible to perform or legally impossible; may not lay down conditions contrary to law or morality; may not make dispositions that would render the reserved portion regime inoperative; and may not exclude heirs holding a reserved portion from the estate entirely in the absence of the grounds indicated in the statute.
Nevertheless, the fact that a disposition has been made contrary to the rules on the reserved portion does not entail the automatic invalidity of the will. In such a case the legal instrument available to the heirs whose reserved portion has been impaired is the action for abatement.
When a will is being prepared, therefore, account must be taken not only of the deceased’s wishes but also of the mandatory provisions of the statute and the rights of heirs holding a reserved portion. Exceeding these limits may make the will the subject of actions for annulment or for abatement.
Methods of Revoking a Will
Being a unilateral disposition upon death, a will does not bind the deceased until death. The deceased may alter the disposition at any moment or withdraw it entirely. As a matter of the Turkish Civil Code No. 4721, revocation may take place in three ways: by an inter vivos disposition of the property forming the subject of the bequest, by destruction of the will, or by the making of a new disposition upon death.
Revocation by a New Disposition
The deceased may manifest an intention to revoke by stating expressly, in a will or contract of succession made subsequently, that he or she withdraws the earlier will.
In some cases the later text contains no express statement that the earlier disposition has been withdrawn. As a rule, in that situation the will later in date takes the place of the earlier one. Where, however, there is no contradiction between the two texts and the later arrangement is of a kind that complements the earlier one, both wills may continue to be valid together.
Destruction of the Document
The deceased may also revoke the disposition by tearing up the will, burning it, striking it through or rendering it illegible.
What is decisive here is that the act of destruction was carried out with the intention of withdrawal. Where, for instance, the document is lost, destroyed by mistake or removed by third parties, it is not as a rule concluded that the will has been revoked.
Disposition of the Property Bequeathed
The fact that an item of property has been bequeathed does not remove the deceased’s power of disposition over it. The deceased may subsequently sell that item, give it away or otherwise part with it.
Where the property forming the subject of the bequest is subsequently transferred or leaves the estate, the relevant testamentary provision is regarded as having been withdrawn. Where, by contrast, the property is still in the deceased’s ownership, not every transaction relating to it amounts to revocation.
If, for example, a mortgage is subsequently created over an immovable property that has been bequeathed, the testamentary provision as a rule retains its validity, since the immovable property continues to remain within the estate.
Consequences of Revocation
Where revocation takes place, the dispositions withdrawn produce no legal effect. If there is another will previously made by the deceased, its validity is assessed separately. In each case the conclusion is reached on the basis of the deceased’s true intention and the scope of the dispositions he or she has made.
Accordingly, where doubt arises as to whether an intention to withdraw is present, the contents of the wills and the transactions subsequently carried out must be assessed together.
The Position of Heirs Holding a Reserved Portion
While granting persons the possibility of disposing of their property by will, the Turkish Civil Code No. 4721 has secured certain proportions of the inheritance rights of some close heirs. This protection, known as the “reserved portion”, constitutes one of the most important limitations placed on freedom of disposition.
The deceased may not therefore dispose of the whole of the property as he or she pleases. Arrangements that impair the portions secured by statute may, under certain conditions, be made the subject of an action for abatement.
What Is the Reserved Portion?
The reserved portion denotes the share of the inheritance of which the deceased may not dispose and which is protected by statute for the benefit of certain heirs.
Under the Turkish Civil Code No. 4721, those holding a reserved portion are enumerated as the adopted child, the surviving spouse and the descendants (children, grandchildren and other relatives in the lower line).
A certain part of the inheritance shares of these persons is under the protection of the statute. The deceased may not set these shares aside entirely by will or by other dispositions upon death.
Does a Will Eliminate the Reserved Portion?
It does not. The existence of a will does not of itself extinguish the rights of heirs holding a reserved portion.
In practice, however, it is seen that persons leave the whole or the greater part of their property to particular persons, which may lead to the rights of heirs holding a reserved portion being impaired.
Dispositions of this nature are as a rule not regarded as automatically invalid; the will continues to be valid. The avenue open to heirs whose reserved portion has been infringed is the action for abatement.
The sole exception to this is where the grounds for disinheritance provided for in the statute have materialised. An heir holding a reserved portion may be disinherited only where the conditions indicated in the statute are present.
The Action for Abatement
The action for abatement is the legal avenue by which benefits or dispositions upon death that impair the reserved portion are reduced to the statutory limit.
What is sought in this action is not the elimination of the will in its entirety, but the reduction of the part exceeding the reserved portion. That is also the fundamental point distinguishing the action for abatement from the action for the annulment of the will.
Even where, for example, the deceased has left the whole of the property to a third person by will, heirs holding a reserved portion may seek the abatement of the part exceeding that portion.
When a will is being prepared, therefore, regard must be had not only to the deceased’s intention but also to the rights of heirs holding a reserved portion as protected by statute. Otherwise, actions for abatement brought after death may partly narrow the implementation of the will.
The Implementation Process After Death
A will takes effect not at the moment it is made but on the death of the deceased. For it to be implemented, however, the occurrence of death is not sufficient on its own. After death, the document must be opened, notified to those concerned and, where necessary, the legal stages relating to its implementation must be completed.
The course of the procedure may differ according to the content of the will, the disputes among the heirs and the actions brought against the document.
Opening of the Will
Every will that comes to light after the death of the deceased must be submitted to the Civil Court of Peace, irrespective of whether it is valid.
The court opens the document, reads it to the heirs and the other persons concerned, and notifies them of its content. The assessment made at this stage is not a review of validity; the court first performs the acts of opening the will and notifying those concerned.
The opening constitutes the first link in the implementation process.
Action for Annulment of the Will
After the document has been opened, the heirs or other persons concerned may object to its validity.
Those objections may be founded in particular on the following grounds: that the disposition contains provisions contrary to law or morality, that it was made under pressure, duress or deception, that it does not comply with the formal rules, or that the deceased lacked the capacity of discernment. An action for the annulment of the will may be brought on these grounds. If the action is allowed, the will may be rendered ineffective in whole or in part. The fact that the document has been opened does not, then, always mean that it will definitively be implemented.
Period for bringing an action for annulment (Turkish Civil Code No. 4721, Art. 559): The claim lapses upon the expiry of 1 year from the date on which the claimant learned of the disposition, of the ground of annulment and of his or her own entitlement, and in any event upon the expiry of 10 years from the date on which the will was opened (30 years as against respondents not acting in good faith), by reason of a preclusive period (statute of limitations).
Execution of the Will
Where no objection has been raised against the document, or where the actions brought have been dismissed, the implementation stage is reached. In practice this stage is referred to as the “execution of the will”.
Within the scope of execution, the provisions of the will are carried out, the debts bequeathed are collected, immovable properties are registered in the land registry and the property forming the subject of the bequest is transferred to those entitled. Where necessary, those entitled may bring an action for the execution of the will and request that implementation be effected by court judgment.
In summary, the implementation process after death consists generally of the stages of the opening of the will, the conclusion of any actions for annulment, and finally the execution of the will.
Independent Legal Assessment
The will is one of those legal transactions which appear relatively simple to prepare but whose consequences give rise to the greatest controversy. In practice the greater part of annulment actions stem not from the content but from formal deficiencies and disputes as to capacity. Omission of the date in holograph wills, or part of the text having been written by another person, and, in official wills, the participation in the transaction of persons caught by the prohibition on acting as a witness, are frequently encountered grounds of defect.
The second critical point is the balance of the reserved portion. However clear the deceased’s intention may be, benefits exceeding the reserved portion may be recovered by way of abatement. Structuring the disposition with regard to the size of the estate and the composition of the heirs therefore substantially reduces the disputes that will arise after death.
When a will is being prepared, the following matters should be addressed as a priority:
- Verifying that the type of will chosen complies fully with the statutory formal rules
- Obtaining a medical report close to the date of execution so that the capacity of discernment is not made a matter of dispute later
- Calculating the reserved portion in advance on the basis of the value of the estate so that the risk of abatement can be measured
- Where disinheritance is envisaged, stating the ground expressly and concretely in the will
- Facilitating the implementation stage by appointing an executor of the will
- Reviewing regularly whether transactions carried out subsequently have withdrawn the earlier disposition
Independent Legal provides advisory services and conducts litigation at every stage of estate planning, from the preparation of the will through to the stages of opening, annulment and execution after death.