Inheritance (Will) Fraud in Turkey
November 9th, 2020 Burcu DUMAN

 

How to determine the estate fraud (inheritance fraud) in Turkey

The biggest source of inheritance law disputes is often a number of actions taken by the decedents (Muris) before they die. When Muris dies, the assets (especially immovables) inherited to his heirs are somehow determined. These values ​​have already been transferred to the legal heirs with the death of the inheritor according to Turkish Law. No heir can take away the inheritance share of the other heir without their consent. There is no problem so far.

The problem arises when the decedent transfers certain properties (especially immovables) to one of the inheritors free of charge at the title deed ("overtake" or "kidnap") before dying. In this case, other heirs suffer a great deal of suffering. 

             The term of  inheritance that is meant to be explained with this expression is the case of "deceased collusion" (that is, the inheritor's transfer of a certain immovable property to one of his future heirs or to a third person who is not even an inheritor, by selling a certain real estate before death, but free of charge) before dying.

             Estate fraud can be defined as a person's unrequited earnings made to deprive his/her heirs of his/her inheritance as a care or sale until death and it is quite common in practice. The concept of estate fraud is not a definition in our laws and has been created in accordance with the Supreme Court practices. This concept has been institutionalized by entering our law with the Decision No. 1/2 of the Court of Cassation General Assembly on Unification of Judgments on 01.04.1974.[1]

              Estate fraud is a relative collusion and a type specific to Article 19 of the inheritance law of the Turkish Law of Obligations.[2]

              To be able to talk about the existence of estate fraud, first of all, the value of the assets on which voluntary transactions are established should be a real estate registered in the title deed.  It is also a fundamental issue that the purpose of the deceased is to smuggle goods.[3] Some conditions are sought for mentioning the estate fraud. These are;

1.     Apparent Contract: This contract, which may arise as a care or sale until death, is a contract that does not reflect the true will of the parties and therefore is not suitable for producing real judgments and results and is made with the purpose of misleading the heirs. During this apparent process, the party shown as the buyer does not pay the seller the price shown mostly or pays a price that is far below the actual and disproportionately. This contract is made to mislead the heirs and to prevent them from seeking their legal rights in relation to the inheritance.[4] The invalidity of this contract may be asserted by the parties or a third party or may be considered ex officio by the judge.[5] 

2.     Confidential Action: It is a contract that reflects the true will of the person who left the inheritance and the other party of the contract by hiding it behind the apparent contract and asking them to make a judgment and result among themselves. Since the wills of the parties are in accordance with each other, this contract is a valid contract if it meets the legal form requirements in line with the will contract.[6] 

3.     Simulated Contract: It is a contract between the person who left the inheritance and the other party of the contract that the apparent transaction is collusive. There is no requirement to be in writing. It can be done with or after the apperant transaction.[7] 

4.     Intention to Deceive Inheritors: In order to be able to talk about the Deceive, they must have acted with the intention of deceiving the heirs by concealing the true nature of the contract from the heirs. By including this issue in the settled case-law of the Court of Cassation, it is emphasized that in cases where there is no intention of deception, estate fraud is not possible. In this sense, the determination of the will of the heir is of utmost importance in the determination of the estate fraud.[8]

What can inheritors do if their deceased and his/her other inheritors use inheritance fraud ?

The heirs who are deprived of their rights due to the estate fraud will be able to file a lawsuit which is called as “title deed cancellation and registration”, abduction of inheritance. This plaintiff has the right to file a suit all heirs regardless of whether they are reserved shares or not. The case can be filed at any time after the deceased's death; time of lapse is not in question. The title deed cancellation and registration lawsuit due to the estate fraud should be filed at the Civil Court of First Instance where the immovable registered in the title deed is located.[9]

           For detailed legal assistance regarding inheritance law and deceased collusion, please contact us.

 

 


[1] Fahrettin KAYHAN, “Taşınmaz Mülkiyetinin Naklinde Muris Muvazaası, Ankara Barosu Dergisi”, Y:2000, S:3, s. 178.

[2] Gökhan ANTALYA / İpek SAĞLAM, Miras Hukuku, Legal Yayıncılık, Eylül 2015, s. 309.

[3] Zeynep UYAR HATİPOĞLU, “Yargıtay İçtihatlarına Göre Muris Muavazaasında Miras Bırakanın Asıl İradesinin Tayini”, Dicle Üniversitesi Hukuk Fakültesi Dergisi, C: 22, S:36, Y:2017, s. 117.

[4] Fikret EREN, Borçlar Hukuku Genel Hükümler, B:21, Yetkin Yayınları, 2017, s. 372.

[5] HATİPOLI, s. 119.

[6] HATİPOĞLU, s. 120.

[7] HATİPOĞLU, s. 121.

[8] HATİPOĞLU, s. 121-122.

[9] HATİPOĞLU, s. 117.

 

Tags: fraud, inheritance, turkey, will