A will does not take effect automatically upon the death of the testator. Before it can produce legal consequences, the competent court must first open the document, make its contents known to the interested parties and complete the procedural formalities.
The Turkish Civil Code requires every will that comes to light after death to be submitted to the Civil Court of Peace and to be opened and read by that court. This obligation is independent of any assessment of the document’s validity; even where the will is thought to be invalid, it must still be placed before the court.
Below we examine in detail the stages through which a will is opened and read before the Civil Court of Peace, the notifications to be given to those entitled under it, and the difficulties frequently encountered in practice.
The Meaning of the Opening Procedure
The opening of a will is the procedure by which a document that emerges after death is formally read out by the competent Civil Court of Peace, entered in the record and made known to the interested parties. The purpose of the procedure is to render the testator’s final wishes legally visible and to inform the heirs of the contents of the document.
Turkish Civil Code No. 4721 Art. 595
“A will that comes to light upon the death of the testator shall be delivered forthwith to the judge of the Civil Court of Peace, irrespective of whether it is valid. The judge of the Civil Court of Peace shall open the will so delivered and read it to the interested parties.”
The Act requires every will that comes to light to be placed before the Civil Court of Peace and made subject to the opening procedure, without its validity being debated.
Opening does not mean that the document has been found to be valid. At this stage the function of the Civil Court of Peace is confined to establishing the contents and communicating them to the interested parties. Objections to validity, applications for annulment and claims for abatement are dealt with in proceedings brought subsequently.
The opening procedure therefore forms the first link in the succession process; it constitutes a starting point for the implementation of the will, for enforcement proceedings and for any action for annulment.
Where Must a Will Be Submitted?
Every will that comes to light after death must be placed before the competent Civil Court of Peace, irrespective of its validity. This obligation, expressly laid down in Article 595 of the Turkish Civil Code No. 4721, binds anyone who holds the document.
The rationale behind the duty to submit is to prevent the testator’s final wishes from being concealed and to ensure that the opening process is conducted under judicial supervision.
Submission to the Civil Court of Peace
Under Art. 595 of the Turkish Civil Code No. 4721, a will that comes to light upon death is to be delivered to the Civil Court of Peace without delay.
As a rule, the competent court is the Civil Court of Peace at the testator’s last place of residence. Once the document reaches the court, the opening and reading procedures are set in motion.
Wills Held by a Notary
In the case of wills executed before a public officer and of handwritten wills deposited with a notary, the heirs will in most instances not need to take any separate step.
Upon learning of the death, the notary forwards the document to the relevant Civil Court of Peace, and the opening process is then conducted by that court.
Handwritten Wills Found at Home
Handwritten wills found in the testator’s home, in a safe or among personal effects must likewise be forwarded to the Civil Court of Peace forthwith.
Whether the document is valid, whether it operates to the detriment of the heirs, and whether its contents are welcome or not have no bearing on this obligation. The person who finds a will has no authority to retain it or to assess it.
Consequences of Failing to Submit
It is unlawful for a person holding the document not to forward it to the court. Such conduct may give rise to liability for the loss suffered by the heirs and, depending on the circumstances of the case, may also raise questions of civil and criminal responsibility.
For this reason every will that comes to light after death must, whatever its contents, be forwarded to the competent Civil Court of Peace without loss of time.
Stages of Opening and Reading
Once the document has been placed before the Civil Court of Peace, the court carries out the opening procedure and notifies the interested parties. Opening is a mandatory judicial stage that gives formal expression to the testator’s final wishes and marks the beginning of many of the steps taken in the law of succession.
Under Article 596 of the Turkish Civil Code No. 4721, a will is opened and read to the interested parties within one month of the date of its delivery.
Steps Carried Out by the Court
When the document reaches the court a file is created and the opening procedure is begun. At this stage the court does not assess the substance or the validity of the will; it merely applies the opening procedure prescribed by the Act.
The fact that a document has been opened therefore does not mean that it has been held valid or that its contents have become legally settled.
Identifying Those Entitled
The court first determines the statutory heirs, the appointed heirs, the legatees and any other persons likely to derive a right from the document.
The purpose of this exercise is to ensure that the contents are duly notified to all those entitled and that the interested parties are able to exercise their rights of action and objection.
Opening and Reading the Document
On the date fixed by the court the will is opened, its contents are entered in the record and it is read out. The procedure does not depend on the attendance of the interested parties; the absence of the heirs or of other persons entitled does not prevent it from being carried out.
The contents of the document are thereby formally established.
Drawing Up the Opening Record
Following the reading, the court draws up a record of the opening. The record notes that the document was opened, that its contents were read out and that the procedural formalities were completed.
This record is a procedural document of considerable importance in any subsequent action for annulment, abatement or enforcement of the will.
Notification to Interested Parties
Pursuant to Article 597 of the Turkish Civil Code No. 4721, those parts of the will that concern them are notified to the statutory heirs, the appointed heirs and other persons entitled.
Upon notification the interested parties are formally apprised of the contents and are placed in a position to exercise their rights of action in respect of annulment, abatement or implementation.
Heirs Resident Abroad
The fact that some of the interested parties are abroad is no obstacle to the opening procedure. Notice is given to such persons in accordance with the rules governing international service.
Although service abroad may prolong matters, the court continues to carry out the steps relating to the opening.
What Follows the Opening
The fact that the document has been opened by the Civil Court of Peace and notified to the interested parties does not mean that the legal process concerning the will has been completed. On the contrary, the opening marks the beginning of the steps directed towards the division of the estate and the implementation of the testamentary dispositions.
From this point onwards the position of the heirs is clarified in the light of the contents of the document, any appointed heirs and legatees are identified, and matters move on to steps of implementation.
- Clarification of the position of the heirs. Upon the opening, the statutory heirs and any appointed heirs come to light; where the document appoints an heir, the person concerned may acquire that status. The extent of the status of heir and the proportion of the shares are, however, determined by considering the certificate of inheritance, the terms of the will and the other rules of succession law together.
- Implementation of the dispositions. Once the will has been opened, the question of giving effect to the provisions it contains arises. Dispositions such as the appointment of an heir, a specific legacy, the establishment of a foundation, or the imposition of a charge or a condition are implemented according to the contents of the document. The fact that implementation has begun does not deprive the interested parties of the right to bring an action for annulment or abatement.
- Land registry and asset transactions. Where the document contains dispositions relating to immovable property, money, receivables or other assets, the steps necessary to transfer them to those entitled are taken. In the case of a legacy of immovable property, registration in the land registry may be effected once the conditions are met. If the heirs or other interested parties fail to carry out these steps, the legatees may have recourse to the courts.
- Execution of the will. Where the dispositions are performed voluntarily, the process is generally concluded without a dispute arising. If, on the other hand, the heirs or other interested parties refuse to give effect to the terms of the will, the legatees and those entitled may bring an action for the enforcement of the will.
As will be seen, the opening procedure is not the end of the process but the beginning of the legal process directed towards the implementation of the testamentary dispositions.
Avenues for Challenging a Will
The fact that the document has been opened by the Civil Court of Peace and notified to the interested parties does not mean that its validity has been settled. Where the statutory conditions are met, the interested parties may challenge its validity and have recourse to various forms of action.
The allegations that most frequently give rise to dispute in practice are that the testator lacked capacity to dispose, that the document was drawn up in breach of the formal requirements, and that the rights of heirs entitled to a reserved portion have been impaired.
Action for Annulment of a Will
An action for annulment of the will may be brought on the ground that the document was drawn up otherwise than in accordance with the conditions required by law. Such a claim arises in particular in the following cases:
- The disposition contains provisions contrary to law or to morality
- The formal requirements laid down by law have not been observed
- The document was drawn up under the influence of mistake, fraud, duress or coercion
- The testator lacked the capacity of judgement
Action for Abatement
Where the dispositions made by the will impair the rights of heirs entitled to a reserved portion, those heirs may bring an action for abatement.
The object of an action for abatement is not to set the document aside in its entirety, but to reduce to the statutory limit those dispositions that exceed the reserved portion.
How Long Does the Process Take?
The time taken to open a will varies according to the type of document, the number of heirs, the service of notices, the presence or absence of a foreign element and the workload of the Civil Court of Peace concerned. It is therefore not possible to state a fixed period applicable to every file.
Article 596 of the Turkish Civil Code No. 4721 obliges the judge of the Civil Court of Peace to open a will delivered to him within one month of the date of delivery. That provision, however, concerns the opening procedure following the arrival of the document at the court; it does not mean that all notifications and subsequent stages will be completed within one month.
In practice, the process between the opening and the completion of service on all interested parties often runs to several months.
The Court Stage
Once the document has been placed before the Civil Court of Peace, a file is first created and the testator’s civil registry records are examined. The court carries out the steps required to identify the statutory heirs, the appointed heirs and the other interested parties. Once matters such as the identification of the persons concerned, the examination of the document as to form, enquiries into the succession particulars and the review of the civil registry records have been completed, the court orders the opening. Although the Act prescribes a period of one month, that period is in practice seen to be exceeded because of the workload of the courts.
The Notification Stage
Following the opening, one of the most decisive stages is service of notice.
Pursuant to Art. 597 of the Turkish Civil Code No. 4721, those parts of the document that concern them are notified to the statutory heirs, the appointed heirs and other persons entitled. The principal factors affecting the time taken for service are the following: the need to carry out address enquiries, the fact that some of the heirs live abroad, address particulars that are no longer current, heirs dispersed across different cities, and a large number of heirs.
In the case of service abroad in particular, the process may run to several months on account of the service procedures of the country concerned and the applicable international conventions.
Causes of Delay in Practice
Although the legislature intended the document to be opened promptly, delays may occur in practice for a variety of reasons. Among the principal circumstances that prolong the process are deficiencies in the civil registry records or the need to complete the particulars of succession, the workload of the court, service abroad, the presence of foreign national heirs, an inability to obtain the identity or address particulars of the heirs, the emergence of more than one will, and the discovery of the document long after the death.
Significance for the Running of Time Limits
The opening and the service of notice are decisive as regards the point from which many legal time limits begin to run. In respect of rights relating to the reserved portion, claims for the enforcement of a will, an action for abatement and an action for annulment of a will, certain periods begin to run when the interested parties learn of the contents or when notice is served. The opening is therefore not merely a formal procedure but carries considerable weight for subsequent proceedings and for the assertion of rights.
Average Duration
In files where the number of heirs is limited and service can be effected without difficulty, the opening and notification procedures may be completed within a few months.
By contrast, in files involving a large number of heirs, a foreign element or the need for address enquiries, the process may be prolonged markedly and may on occasion exceed a year.
How long the opening procedure will take must therefore be assessed separately in the light of the particular circumstances of each case.
Independent Legal Assessment
The opening of a will is often regarded as a mere formality; yet the timetable for every subsequent avenue of redress is tied to that procedure. The point from which the one-year period in an action for annulment begins to run, the timely assertion of a claim for abatement and the preparation of an action for enforcement all depend on the record of the opening and on the dates of service. Following the file closely at the opening stage therefore prevents the irremediable loss of rights later on.
The problem most frequently encountered in practice is defective or irregular service, which later turns into a dispute over time limits in proceedings brought subsequently. In files with a wide circle of heirs or a foreign element, establishing the chain of service correctly from the outset is of particular importance.
In any given file the following matters should be addressed as a priority:
- Delivering the document that has come to light to the Civil Court of Peace without delay, even where its validity is in dispute
- Correctly identifying the competent court by reference to the testator’s last place of residence
- Obtaining the record of the opening and the service documents for the case file from the outset
- Examining the chronological order and any intention to revoke where more than one will exists
- Ensuring that notice is given to those entitled abroad in accordance with the rules governing international service
- Calculating the periods for annulment and abatement by reference to the date of knowledge
Independent Legal advises on and conducts succession matters at every stage, from the delivery of a will to the court, through the opening and notification stages, to actions for annulment and enforcement.