The action for abatement is the legal remedy to which an heir entitled to a reserved portion has recourse in order to protect his or her right of succession and share. In such an action the heir entitled to a reserved portion asserts that his or her share has been impaired by the deceased’s dispositions upon death or by arrangements made with the other heirs, and may seek to have the dispositions causing the infringement rendered ineffective. The aim is to protect rights of succession and to prevent dispositions inconsistent with equity.
Turkish law secures the shares of certain statutory heirs. The deceased’s spouse, children, grandchildren and parents are regarded as heirs entitled to a reserved portion. These persons are entitled to at least a certain proportion of the share of inheritance, and that proportion is called the reserved portion. The deceased is expected to have regard to those rights when disposing of his or her assets; the power of disposition is therefore not unlimited.
The deceased may nonetheless have conferred a gratuitous benefit on a third party during his or her lifetime, by a contract of inheritance or by a will — by giving away his or her house, for example. In such a case the heirs entitled to a reserved portion may require that the benefit conferred remain within the statutory limits. The action in which that claim is advanced is the action for abatement.
Abatement is a route open to heirs whose reserved portion has been impaired. The action is directed at removing or reducing the harm caused to the reserved portions by unjustified or fraudulent dispositions out of the estate. The heirs ask the court to adjust the deceased’s intention so that it is compatible with the reserved portions. The rights of the heirs entitled to a reserved portion are thereby protected, and a balance is struck between the deceased’s intention and the reserved portion.
What Is an Action for Abatement?
In legal language the term abatement carries the sense of mitigation or reduction. The action for abatement is an action brought in order to remove or reduce the effect of certain provisions in the deceased’s dispositions upon death, or in the arrangements made with the other heirs, on the assertion that those provisions are void. The institution serves to soften, or wholly to set aside, the effect of the provisions in question on the heirs.
Under our legal order everyone is free to determine to whom his or her estate is to pass after death. Heirs entitled to a reserved portion constitute the exception to that freedom. Such persons retain their proportion of the reserved portion notwithstanding certain dispositions made by the deceased before death, and indeed notwithstanding certain benefits conferred during his or her lifetime.
The legislation does not treat the infringement of reserved portions as a ground of invalidity in itself. Even where the reserved portions have been impaired, the heirs may choose to respect the deceased’s intention. Those who do not accept that outcome, however, and who wish to protect their rights, may exercise that power by bringing an action for abatement.
In the action the heir entitled to a reserved portion asserts that the deceased’s dispositions over the estate are unjustified and that they have reduced or wholly extinguished his or her reserved portion. Following its examination the court may give judgment for the protection or the recovery of the reserved portion. Where the claim is allowed, a sum corresponding to the right of the heir entitled to a reserved portion is set aside out of the estate, or the division is arranged accordingly. The heir’s statutory share is thereby secured.
A claim for abatement is directed generally at removing or reducing the effect of a provision on the assertion that it is unjustified, prejudicial or fraudulent. The claimant is under a duty to establish the existence of the element affecting validity. Where the claim is allowed, the court may render the provision in question void, mitigate it or alter it.
Heirs Entitled to a Reserved Portion Who May Bring an Action for Abatement
The reserved portion denotes the minimum share that must by law be set aside for the heirs out of the estate under the Turkish Civil Code No. 4721. That share is a right accorded to the heirs in priority and protected against the deceased’s intention to dispose. It must be taken into account in dispositions of the assets.
In Turkish law the deceased’s parents, children, grandchildren and spouse are regarded as heirs entitled to a reserved portion. These persons are entitled to certain proportions when they take a share of the estate.
Under the Turkish Civil Code No. 4721, the heirs entitled to a reserved portion who may bring an action for abatement are the following:
- The deceased’s spouse
- The deceased’s children
- The deceased’s parents
- The deceased’s grandchildren
The persons listed are regarded as heirs entitled to a reserved portion and are entitled by law to their shares in the estate. Such heirs may bring an action asserting that their reserved portions have been impaired as a result of dispositions upon death or of arrangements made among the heirs. In the action, the correction or annulment of unjustified benefits conferred out of the estate, or of provisions that reduce the reserved portion, may be sought.
The Proportions of the Reserved Portion
The proportions are laid down in Article 506 of the Turkish Civil Code No. 4721.
- For descendants (children and grandchildren) the reserved portion amounts to ½ of the statutory share of inheritance.
- For each of the parents the reserved portion amounts to ¼ of the statutory share of inheritance.
- The reserved portion of the surviving spouse varies according to the class of heirs alongside which he or she inherits.
Where the spouse inherits alongside the descendants or the class of the parents, the reserved portion amounts to the whole of the statutory share of inheritance.
In all other cases the spouse holds a reserved portion amounting to ¾ of the statutory share of inheritance.
These proportions cannot be reduced. Save in the cases dealt with in the notes entitled Waiver of Inheritance, Disinheritance and Renunciation of Inheritance, heirs entitled to a reserved portion cannot be deprived of the estate to the extent of their shares.
The Deceased’s Disposable Portion
As noted above, the deceased may dispose as he or she wishes of the part remaining once the proportions of the reserved portion have been deducted. Where there is no provision to the contrary, for example, the entire estate of a father with an only child passes to his son. The son’s reserved portion in that share will be one half (½). On that picture the father may dispose freely of the remaining half (½) of his assets, but must not touch the other half, which is to belong to the son.
In order for the freely disposable part to be established, the estate to be taken as the basis of the abatement calculation must be correctly determined. That calculation is made in the following steps: first, the deceased’s assets — immovables, cash holdings and receivables — are established. From the assets of the estate there are deducted funeral expenses, the debts of the estate, the costs of protective measures and three months’ living expenses of the persons the deceased was bound to support. To the resulting sum are added the inter vivos benefits referred to above, and the estate subject to abatement thereby emerges. Finally, when the shares of the heirs entitled to a reserved portion are deducted from that estate, the value of which the deceased may dispose freely is arrived at.
Dispositions Subject to Abatement
Article 565 of the Turkish Civil Code No. 4721 lists the inter vivos benefits subject to abatement as follows:
- Benefits conferred for the purpose of liquidating rights of succession before death.
- Inter vivos benefits conferred on a statutory heir who has lost the status of heir, on account of his or her share of the inheritance.
- Benefits conferred where it is manifest that the purpose was to render the rules on the reserved portion ineffective.
- Benefits conferred on descendants by way of a transfer of assets not to be returned, or by way of discharge from a debt, together with dowry and start-up capital given beyond what is customary.
- Gifts made with a reservation of the right to revoke at will, together with gifts other than those given in accordance with custom within the year preceding death.
Dispositions Not Subject to Abatement
The dispositions subject to abatement are regulated in mandatory terms and are limited in number. Inter vivos dispositions not listed in the Act are therefore not made the subject of abatement, even where they were made gratuitously. The examples most frequently encountered in practice are the following:
- Things given in performance of a moral duty.
- Gifts given in accordance with custom.
- Claims arising from the matrimonial property regime between spouses.
- Gifts made without a reservation of the right to revoke at will and made more than one year before death.
- The waiver of a right not yet acquired.
The Order of Priority among Dispositions Subject to Abatement (The Order of Abatement)
The order of priority is regulated in Article 570 of the Turkish Civil Code No. 4721. Under that provision:
- Abatement begins with the dispositions upon death, and a proportionate reduction is made from each of them.
- If the infringement of the reserved portion persists, the second stage moves on to inter vivos dispositions; here one proceeds from the most recent in date to the oldest.
- If the infringement still cannot be remedied, third in order come dispositions upon death made for public benefit, and abatement is effected proportionately from each of them.
- If the heirs entitled to a reserved portion have still not obtained their shares, the fourth stage has recourse to inter vivos benefits conferred for public benefit; here too one proceeds from the most recent in date to the oldest.
As will be seen, abatement is an operation that begins with the dispositions upon death and proceeds in graduated steps directed at protecting the reserved portions. The particular circumstances of each case may nonetheless affect the outcome.
The Court with Subject-Matter and Territorial Jurisdiction
Jurisdiction in an action for abatement is determined according to the following principles:
Territorial jurisdiction: Territorial jurisdiction in this action falls to be considered under two headings, general and special.
General territorial jurisdiction belongs to the court of the deceased’s last place of residence. The action may therefore be brought before the court at the deceased’s last place of residence.
Where the deceased had no place of residence in Türkiye, the action may be brought at the place where the immovable assets are situated.
Court with subject-matter jurisdiction: Subject-matter jurisdiction lies with the Civil Court of First Instance. These courts, which are competent in disputes concerning the law of inheritance, also determine claims for abatement.
The Preclusive Period (Statute of Limitations)
The periods are laid down in Article 571 of the Turkish Civil Code No. 4721. Under that provision the heirs’ right of action arises at the moment they learn that their reserved portions have been infringed, and that right must be exercised within one year. If no action is brought within the period, the right comes to an end.
- An heir who learns that his or her reserved portion has been impaired must bring the action within one year of that date; otherwise the right of action lapses on the expiry of the period.
- The right of action lapses on the expiry of ten years from the date on which the will was opened, in the case of wills, and from the opening of the succession in the case of other dispositions.
- In any event, no action may be brought once ten years have elapsed since the date of the deceased’s death.
For the details of the matter, the note entitled Annulment of a Will may be examined.
These periods are limitations that heirs contemplating recourse to abatement must follow scrupulously. Where the time frames indicated are missed, the right of action is extinguished.
The Course of the Proceedings
Submission of Evidence
The submission of evidence to the court is a critical stage for the sound progress and conclusion of the proceedings. The parties may adduce evidence in support of their allegations and defences; that evidence enables the dispute to be assessed correctly. The evidence that may be relied on in abatement proceedings may include the following:
Documents and records: Land registry records relating to the estate, bank account statements, promissory notes and documents evidencing receivables may be submitted in evidence.
Witness statements: Accounts given by persons able to testify to the period during the deceased’s lifetime, or to the period preceding the death, may be used to support or to rebut the allegation. Witness evidence concerning benefits conferred on heirs entitled to a reserved portion during the deceased’s lifetime, for example, may be decisive.
Expert reports: A court-appointed expert may examine the value of the estate, or whether the benefits conferred have affected the reserved portions, and draw up a report.
Wills and agreements: The deceased’s will and the arrangements made with the other heirs constitute evidence as to the source of the dispute. The accuracy and validity of those documents are assessed by the court.
Other evidence: Correspondence, telephone records, photographs and video recordings may also be placed on the file. Their relevance and accuracy are likewise appraised by the court.
The provisions of the Code of Civil Procedure No. 6100 must be observed in the submission of evidence. It is important for the parties to comply with the periods prescribed for notifying evidence and with the procedure determined by the court.
The Burden of Proof
The burden of proof lies on the claimant, that is, on the heir entitled to a reserved portion. An heir who asserts that the deceased’s dispositions have infringed his or her reserved portion is under a duty to establish that assertion.
Court Fees
Actions for abatement are subject to a proportional court fee. In the law of inheritance the extent of the estate and the proportions of the reserved portion — that is, the abatement calculation — can often not be fully determined at the moment the action is brought. For that reason a fee is generally paid at the outset on a low value. Once the court-appointed expert has carried out the abatement calculation at a later stage of the proceedings, the fee is completed and the sum claimed may be increased.
An action for annulment of title deed and registration based on simulation by the deceased is, moreover, a distinct type of action from abatement, and in practice may be brought together with a claim for abatement in the alternative.
For details of the comparison between the two types of action, together with the action for simulation, the note entitled Action for Annulment of Title Deed and Registration Based on Simulation by the Deceased may be consulted.
What Are the Differences between Abatement and Simulation by the Deceased?
Abatement and simulation by the deceased are two distinct types of action resting on different concepts and different legal foundations. The principal distinctions between them are the following:
- Purpose: Abatement is directed at protecting the rights of heirs who assert that the deceased’s dispositions have impaired their reserved portions. An action for simulation by the deceased, by contrast, is an action brought by a party asserting that a transfer of assets was not genuine but was effected in appearance only or indirectly, in order to have the transaction declared invalid.
- Parties: In abatement the capacity to sue belongs to the heirs entitled to a reserved portion; in an action for simulation, the persons or bodies party to the transfer of assets may stand as respondents.
- Legal basis: The action for abatement rests on the rules of the law of inheritance and on the assertion that the reserved portion has been infringed. The action for simulation by the deceased, on the other hand, rests on the existence of simulation in law, that is, on the assertion that the transaction carried out pursued a purpose different from its appearance.
- Burden of proof: In abatement the burden of proof lies on the heirs; the heirs entitled to a reserved portion must prove that the dispositions have infringed their shares. In an action for simulation, the party advancing the assertion must establish that the transaction was carried out in appearance only or for an indirect purpose.
The judgment to be given in an action for abatement may involve rendering the dispositions void, or mitigating their effect, so as to protect the rights of the heirs entitled to a reserved portion. In an action for simulation, by contrast, the judgment may require the annulment or the invalidity of the transfer that was carried out.
How Much Are the Court Costs and the Attorney’s Fees?
These items vary according to a great many factors. The value of the estate in dispute, the complexity of the file, the duration of the proceedings and the experience of counsel all play a part in determining the costs and the fee.
Court costs comprise the fees payable on the value of the action, the costs of on-site examination and of the court-appointed expert, postal expenses and the payments that must be made for other legal steps. These items differ according to the general practice of the court hearing the case and according to the official tariffs, which are updated each year.
Attorney’s fees are determined by reference to criteria such as the time and effort devoted to the file by counsel practising in the field of inheritance law, the complexity of the dispute and the level of experience. In practice the fee may be agreed on an hourly basis, as a fixed sum, or as a proportion dependent on the outcome of the action.
Since every file has its own variables, it is difficult to give a definite figure in advance. It is therefore prudent for a clear agreement to be reached as to the scope of counsel’s fee before the action is brought. Information as to how the costs and the fee are calculated, together with an estimate of the likely cost, may be shared at that stage.
Frequently Asked Questions
In what circumstances does an action for abatement arise?
Where certain provisions in the deceased’s dispositions upon death, or in the arrangements made with the other heirs, impair the reserved portions, the heirs entitled to a reserved portion have recourse to abatement with a view to mitigating the effect of those dispositions and protecting their shares.
The action may be brought in the following cases:
- Where the deceased’s will contains provisions infringing the shares of the heirs entitled to a reserved portion.
- Where arrangements made among the heirs restrict or wholly extinguish the rights of the heirs entitled to a reserved portion.
- Where dispositions upon death made by the deceased impair the reserved portions.
Who may bring the action?
The right of action belongs to the heirs entitled to a reserved portion. These are the persons who, upon the opening of the succession, hold the proportions of the reserved portion determined by the law of inheritance. Such heirs, on forming the view that the dispositions have infringed their shares, may assert that dispositions upon death or inter vivos benefits have impaired the reserved portion and seek to have the provisions in question rendered void or their effect reduced.
Is representation by a lawyer mandatory in inheritance actions?
Turkish law allows parties to defend and represent themselves in person before the courts; save in certain exceptional cases, representation by a lawyer is not mandatory. On that footing there is no obligation of representation by counsel in inheritance actions either.
Given the technical structure of abatement and simulation disputes, however, conducting the process by persons without legal training may lead to procedural errors that are difficult to remedy. In order to avoid the loss of rights, it is recommended that support be obtained from experienced counsel practising in the field of inheritance law before any step is taken.
On what matters does counsel practising in inheritance law provide support?
Counsel specialising in the field of inheritance law provide advisory and representation services in relation to succession, wills, claims for abatement, the division of the estate, the administration of the estate and disputes in this field.
The function of that support is to protect the rights of the heirs, to satisfy the statutory requirements, to manage the legal process effectively and to bring problems arising from the law of inheritance to a resolution. The advice of counsel experienced in the field enables the process to proceed in a more predictable and reliable manner.
That contribution takes concrete form principally in the following respects:
Legal advice: Conveying accurate information on the law of inheritance, explaining the party’s rights and responsibilities, and determining the legal strategy appropriate to the case.
Resolution of disputes: Addressing the disagreements that arise under headings such as the division of the estate, the interpretation of a will and claims for abatement, together with representation in the proceedings and the protection of rights.
Declarations and applications: Preparing the necessary documents, making the applications and completing in full the procedural steps in the process of division.
Management of legal processes: Planning the process and taking the necessary steps in good time under technical headings such as the distribution of the estate, asset valuations and the tax dimension.
The Independent Legal Assessment
In abatement disputes the element that determines the outcome is most often not the legal characterisation but the accuracy of the calculation. The extent of the estate taken as the basis of abatement, the addition of inter vivos benefits and the correct application of the order of reduction determine not so much whether the action will be allowed as the extent to which it will be allowed. The statement of claim must therefore be constructed so as to set out from the start the framework of the expert examination.
It must also be borne in mind that claims for abatement and for simulation by the deceased are alternatives to one another, and that framing claims in the alternative calls for care because the periods run separately.
In a particular file, priority should be given above all to the following matters:
- Documenting the date on which it became known that the reserved portion had been impaired, for the purposes of the one-year period
- Verifying one by one whether the inter vivos benefits fall within the scope of Turkish Civil Code Art. 565
- Constructing in the pleading an order of claims consistent with the rule on the order of abatement
- Taking into account from the outset the debts, funeral expenses and living expenses to be deducted from the estate
- Planning the stage of completing the fee where it is paid at the outset on a low value
- Deciding at the very outset whether the allegation of simulation is to be advanced in the alternative
Independent Legal provides advisory services and conducts litigation in relation to the preparation of claims for abatement arising from infringements of the reserved portion and to the pursuit of the associated disputes concerning the annulment of title deeds.