The official will is both the most widely used of the forms of disposition upon death recognised by the Turkish Civil Code and the one with the greatest evidential weight.
Its validity depends on the conditions as to form required by the Act being satisfied in full. Recording the testator’s intention before a public officer and with the participation of witnesses largely forecloses the disputes as to validity and proof that may otherwise arise later.
In this briefing note we examine in detail what an official will means, the conditions required, the forms of execution, and the circumstances in which it may be annulled.
What Is an Official Will?
An official will is the type of will by which the testator sets out his or her last wishes before a public officer and in conformity with the procedure prescribed by the Act. Regulated in Articles 532 et seq. of the Turkish Civil Code No. 4721, it is the option most frequently resorted to in practice.
The essential function of the institution is to record the testator’s intention in a reliable manner and to forestall disputes that may arise after his or her death. For that reason, two witnesses must also be present, alongside the public officer, during execution.
Because the conditions as to form pass through the scrutiny of an official authority, the official will carries greater evidential weight than the other types and is less frequently the subject of an action for annulment.
Where Is an Official Will Drawn Up?
The power to draw up this instrument belongs to the judge of the civil court of peace, to notaries, and to other public officers authorised by law in this respect.
In practice, the great majority of official wills are prepared at notaries’ offices. The Act has not, however, confined that power to notaries; in certain circumstances it also allows judges of the civil court of peace and other authorised officials to carry out the execution.
Who May Make an Official Will?
Pursuant to Article 502 of the Turkish Civil Code No. 4721, any person who possesses the capacity of discernment and has completed the age of fifteen may make an official will.
Since the power to make a will is a right strictly personal in nature, it cannot be exercised through a power of attorney or by representation; the instrument must be drawn up by the testator in person.
Differences from Other Types of Will
Alongside the official will, Turkish law recognises two further types: the holographic will and the oral will. The principal features distinguishing the official will from these are the following:
- The conditions as to form pass through the scrutiny of an official authority.
- The instrument is drawn up before a public officer.
- It is less often the subject of subsequent allegations of invalidity.
- The participation of two witnesses is mandatory.
- Its evidential weight is higher than that of the other types.
- The risk of loss or of alteration is low.
Because of these advantages, the official will is regarded as the safest option, particularly for persons whose assets are of high value.
What Are the Conditions for the Validity of an Official Will?
The validity of this disposition, dealt with in Articles 532 et seq. of the Turkish Civil Code No. 4721, depends on compliance with the form required by the Act. The absence of even one of the conditions may result in the annulment of the will in proceedings brought by the interested parties. The matters required for validity are the following:
- That the instrument be drawn up before an authorised public officer,
- That two witnesses possessing the qualities required by the Act be present,
- That the testator’s intention be set out in due form,
- That the stages of reading, declaration and signature be completed in the manner indicated in the Act,
- That the instrument bear the date of execution.
Execution before a Public Officer
The will is drawn up by a notary, a judge of the civil court of peace or another public officer to whom that power has been given by law. The testator must convey his or her last wishes directly to the public officer, and the instrument must be prepared in accordance with that declaration.
The role of the public officer is not confined to committing the text to paper. He or she is also under a duty to ensure that the execution is conducted in conformity with the statutory procedure and to verify the conditions as to form.
The Presence of Two Witnesses
Two witnesses must be present during execution. The witnesses take part in the process as persons confirming that the testator possesses the capacity to dispose and that he or she has drawn up the instrument of his or her own free will.
In order to safeguard the impartiality of the witnesses, the Act prohibits certain persons from undertaking that role. Heirs, the relatives of heirs and persons who would derive a benefit under the will may not act as witnesses.
The Declaration, Reading and Signature Process
The testator conveys to the public officer the matters he or she wishes to be recorded in the instrument. The text prepared by the officer is then read out to the testator, or is read by the testator in person.
Where the text is found to correspond to the testator’s intention, the instrument is signed. Thereafter the witnesses too make the declarations prescribed by the Act and append their signatures. The complete performance of these stages is decisive as regards validity.
Date and Form of Execution
The instrument must bear the date of execution. The date acquires particular weight where more than one will exists or where the testator’s capacity is called into question.
The will must, in addition, be drawn up in conformity with the form indicated in the Turkish Civil Code No. 4721. Instruments prepared contrary to that form may face allegations of invalidity or annulment even where they reflect the testator’s true intention.
Who May Not Act as a Witness?
That the witnesses be impartial and trustworthy persons is of great importance for the validity of the instrument. For that reason the Turkish Civil Code No. 4721 prohibits certain persons from acting as witnesses when an official will is drawn up.
The purpose of these prohibitions is to enable the testator to declare his or her intention free from any pressure and to prevent persons who would benefit from the instrument from becoming involved in the process.
Wills drawn up contrary to the prohibitions on acting as a witness may become the subject of subsequent actions for annulment.
Heirs and Their Relatives
Since the witnesses taking part in the process must be impartial, heirs, together with their spouses, their descendants and ascendants, their siblings and close relatives of that degree, may not act as witnesses.
By prohibiting the giving of evidence by those who may derive a benefit from the estate, whether directly or indirectly, the legislature has sought to preserve the reliability of the instrument.
Persons Lacking Capacity to Act
The witnesses are required to possess the capacity of discernment and the capacity to act. Accordingly,
- Persons subject to legal restriction of capacity,
- Persons lacking the capacity of discernment,
- Persons not in a position to grasp the meaning and consequences of the transaction in which they take part
may not serve as witnesses. The witnesses must be in a position to confirm that the testator declared his or her intention freely and that the transaction was conducted in due form.
Persons Deriving a Benefit under the Will
Persons on whom a benefit is conferred by the instrument, and their relatives, may likewise not act as witnesses.
A person to whom an immovable is left by will, for example, or that person’s spouse, child, mother or father, may not act as a witness. Otherwise a question of validity may arise as regards the benefit in question.
This provision is designed to preserve the impartiality of those taking part in the process and to safeguard the testator’s true intention.
Forms of Executing an Official Will
Taking as its basis the testator’s ability to read and write, the Turkish Civil Code No. 4721 has adopted two separate procedures. One procedure applies to persons able to read and sign the text, while a different arrangement is prescribed for those unable to do so.
The aim of both procedures is the same: to ensure that the instrument reflects the testator’s true intention.
Execution by Reading and Signing
The procedure to be applied where the testator is in a position to read and sign the instrument is regulated in Article 533 of the Turkish Civil Code No. 4721.
Under this procedure the testator communicates his or her last wishes to the public officer, who records those declarations in writing and prepares the text. The text so prepared is read by the testator and, if found to correspond to his or her intention, is signed.
After the signature, the witnesses also sign, declaring that the testator read and signed the instrument and that he or she possesses the capacity to dispose.
The great majority of official wills executed at notaries’ offices are prepared by this method.
Execution for Persons Unable to Read or to Sign
Where the testator cannot read or sign the instrument by reason of visual impairment, illiteracy, a physical disability or some similar cause, the special procedure in Article 535 of the Turkish Civil Code No. 4721 comes into play.
In that event the text prepared by the public officer is read out to the testator, who is asked whether the content corresponds to his or her last wishes. When the testator states that the instrument reflects his or her intention, the witnesses append their signatures, confirming both that the declaration was made in their presence and that the testator possesses the capacity to dispose.
The Act has accepted this special procedure so that persons unable to read or to sign may also make a will. So long as the conditions as to form are observed, instruments drawn up in this way carry the same legal weight as other official wills.
Special Situations Concerning Persons Making a Will
The Act seeks to ensure that the testator’s true intention is set out in full when an official will is drawn up. To that end, special procedures have been adopted alongside the general rules in respect of certain persons.
Advanced age, a language barrier or various physical disabilities do not prevent a person from making a will; in such cases, however, the intention must be established in a manner leaving no room for doubt.
Official Wills Made by Persons of Advanced Age
Turkish law contains no rule prohibiting persons above a particular age from making a will. The only requirement is that the capacity of discernment be present on the date the instrument is drawn up.
For that reason, where advanced age, Alzheimer’s disease, dementia or similar conditions are in issue, obtaining a medical report is frequently preferred in practice in order to prevent disputes that may arise later.
Official Wills Made by Persons Who Do Not Speak Turkish
Persons who do not speak Turkish may also make an official will. The testator must, however, fully grasp the content of the instrument and be able to express his or her intention correctly.
In practice the transaction is therefore conducted through a sworn interpreter, and the testator’s declarations are recorded by the public officer with the interpreter’s participation. It is thereby ensured that the instrument reflects the true intention.
Official Wills Made by Visually Impaired Persons
There is no obstacle to visually impaired persons making an official will. Since they will be unable to read the text, however, the special procedures in the Turkish Civil Code No. 4721 must be applied.
In that event the text is read out to the testator by the public officer and it is expressly confirmed that the content corresponds to his or her own wishes. It is thereby assured that the instrument has been drawn up in conformity with the true intention.
Official Wills Made by Deaf and Mute Persons
Persons who are deaf, mute, or both deaf and mute may likewise make an official will. Different procedures may nonetheless be applied according to their means of communication.
Where the testator is able to communicate by reading and writing, he or she may set out his or her intention in writing. Where necessary, recourse is had to a sign language interpreter or to suitable methods of communication so that the last wishes are correctly established.
The decisive matter here is that the testator be able to understand the content of the instrument and to declare his or her intention leaving no room for doubt.
Persons on Whom No Benefit May Be Conferred by an Official Will
The Act prohibits the conferral of a benefit by will on certain persons taking part in the process of execution. The purpose of that prohibition is to prevent those involved in the process from exerting influence over the testator and to preserve the reliability of the instrument.
Pursuant to Article 536 of the Turkish Civil Code No. 4721, no benefit may be conferred by that will on the public officer taking part in the execution, on the witnesses and the other persons acting in the process, or on their descendants and ascendants, their siblings and their spouses.
Within that framework,
- The witnesses taking part in the instrument,
- The notary or other public officers drawing up the will,
- The descendants and ascendants of those persons,
- The interpreters and other officials acting during the execution,
- The siblings of the persons referred to,
- Their spouses
may not benefit from dispositions made by the official will. Benefits conferred on such persons contrary to the Act are invalid; that invalidity, however, produces effects only as regards the benefit in question. As a rule the instrument as a whole does not become void.
By virtue of this provision the impartiality of those taking part in the process is preserved, and it is assured that the testator declares his or her last wishes free from pressure.
How Does the Procedure for Making a Will before a Notary Work?
The great majority of official wills are prepared at notaries’ offices. An instrument executed before a notary is the most common option for converting the testator’s last wishes into an official text and for keeping it safely.
During execution the testator’s identity, capacity and intention are verified; the instrument is created once the conditions as to form required by the Act have been satisfied.
The Application Stage
A person wishing to make an official will may apply to any notary of his or her choosing and convey that request.
At the application stage the notary first assesses the applicant’s identity and capacity to make a will. Where there is doubt as to capacity, in particular by reason of advanced age or serious illness, additional documents or a medical report may be requested.
Documents Required
In most cases it is sufficient to produce an official document establishing identity, such as an identity card or a passport.
Depending on the features of the particular case, however, the notary may request
- Information concerning the witnesses,
- A medical report,
- Information concerning the assets to be bequeathed,
- Details of the interpreter
as the case may be.
Execution and Signature Formalities
The testator conveys to the notary the matters he or she wishes to be recorded in the instrument. The text prepared by the notary is read out to the testator, or is read by the testator in person.
Where the text is found to correspond to the testator’s intention, the instrument is signed. The witnesses then make the declarations required by the Act and append their signatures.
With the completion of these stages the official will is legally constituted.
Safekeeping of the Will
The original of the instrument so executed is kept at the notary’s office. The risk of loss, damage or alteration by third parties is thereby significantly reduced.
On the testator’s death the instrument is notified to the relevant authorities, is subjected to the opening procedure, and is communicated to the heirs and other interested parties.
For that reason the official will offers a higher degree of legal security than the other types, both as regards the manner of its execution and as regards the manner of its safekeeping.
How Is an Official Will Revoked?
The fact that the instrument has been executed does not mean that the testator is definitively bound by that declaration of intention. The Turkish Civil Code No. 4721 confers on the testator the power to alter or wholly withdraw his or her will up until death.
In this respect the official will differs from a contract of inheritance and may at all times be withdrawn or altered. Revocation may take place by way of
- Making an inter vivos disposition of the property bequeathed,
- Making a new disposition upon death,
- Destroying the instrument
one of these routes.
Making a New Will
By a new will or a contract of inheritance made subsequently, the testator may withdraw his or her earlier official will in whole or in part.
The later instrument may state expressly that the earlier will is withdrawn. Where, in addition, there is a contradiction between the two instruments, the disposition bearing the latest date is as a rule taken as the basis.
Destruction of the Will
Since the original is kept at the notary’s office, the destruction by the testator of the copy in his or her possession does not as a rule result in revocation. As revocation by that route is scarcely possible in practice, the safest method is to make a new will or to make a declaration of revocation before a notary in official form.
Disposing of the Property Bequeathed
Where the testator subsequently sells or gives away the property bequeathed, or otherwise parts with it, this too may be construed as a withdrawal of the relevant testamentary provision.
Where, for example, an immovable left by will to a particular person is subsequently sold to a third party, the relevant provision becomes incapable of application, since the immovable will not form part of the estate.
Consequences of Revocation
Where revocation occurs, the dispositions withdrawn produce no effect. If the testator had previously made another will, its validity is assessed separately according to the features of the particular case.
The execution of an official will therefore does not prevent the testator from subsequently changing his or her intention. The Act affords the freedom to alter and withdraw a will at any time up to the moment of death.
Challenging an Official Will and the Action for Annulment
Although the official will carries greater evidential weight than the other types, it is not in all circumstances regarded as an unassailable instrument. Where the conditions laid down in the Act are met, the instrument may be challenged and an action for the annulment of the will may be brought.
Its validity may be made subject to judicial review in particular where the testator’s capacity, a defect in his or her intention, or a failure to comply with the conditions as to form is in issue.
In What Circumstances May an Official Will Be Annulled?
Under the Turkish Civil Code No. 4721, annulment may rest on the following grounds:
- That the instrument was drawn up as a result of mistake, fraud, duress or coercion,
- That the testator lacked the capacity of discernment on the date of execution,
- That the content contains provisions contrary to law or to morality,
- That the conditions as to form required by the Act were not complied with.
The grounds most frequently advanced in practice are the assertion that the testator lacked capacity, and irregularities relating to the witnesses and to form.
Time Limits and the Right of Action in Annulment Proceedings
Anyone with a legal interest in annulment may bring an action. Statutory heirs, appointed heirs, legatees and other interested parties who would acquire a right were the instrument annulled hold the right of action on that basis.
The action must be brought within one year of the date on which the ground of annulment and the will became known. In any event, preclusive periods of 10 years as against respondents acting in good faith, and of 30 years as against respondents not acting in good faith, apply from the date on which the will was opened. Where those periods are missed, annulment may not be sought.
Consequences of the Action for Annulment
Where the court allows the action, the official will becomes void in whole or in part. Depending on the extent of the annulment, the division of the estate is reconsidered; where necessary, an earlier will or the rules of statutory succession are applied.
Actions for annulment are therefore among those disputes that directly affect the division of the estate and that call for technical assessment.
The Independent Legal Assessment
The security afforded by an official will depends on the conditions as to form having been satisfied in full. In practice a significant proportion of annulment decisions stem not from the content of the instrument but from procedural errors at the moment of execution. The preparation of a will should therefore be built upon capacity and the choice of witnesses before it is built upon the division of the assets.
So that the instrument is not opened to argument in later years, it is prudent to create records supporting the capacity of discernment on the date of execution and to construe the scope of the prohibitions on acting as a witness broadly.
In a particular file, attention should be paid above all to the following points:
- Verifying in advance that the witnesses do not fall within the prohibition by reason of their relationship to the succession or to the benefits conferred
- Obtaining, in cases of advanced age or illness, a medical report close in time to the date of execution
- Applying the special procedure in Article 535 in full where the testator has difficulty in reading or signing
- Reflecting expressly in the instrument the participation of a sworn interpreter where the testator does not speak Turkish
- Stating in the new instrument, in a manner leaving no room for doubt, that earlier wills are withdrawn
- Calculating the one-year period from the moment of knowledge where an action for annulment is contemplated
Independent Legal provides advisory services in relation to the execution of official wills and acts in disputes concerning the annulment and the enforcement of wills.