The Turkish Civil Code “TCL”, containing regulations on Inheritance Law allows individuals to leave their assets to those they wish after their death, by issuing a will. Even if people draw up a will, they cannot dispose of the reserved portions of the inheritors (spouses and children) with the will. The arrangement of the will is subject to certain form requirements which are regulated under the law. If a will is issued against the form requirements, the will can be canceled (TCL article 553).
It is stated in the TCL article 531 that a will can be done in three different ways. In Turkish law, the testament can be arranged officially, by handwriting of the inheritor and verbally. It is not possible to make a will except these three forms.
In this article, we will write the reasons for cancellation accepted by law and the Supreme Court practice for all three forms.
- Reasons for Cancellation of the Officially Drawn Will
- In Testaments for Literates
The testament to be made officially must be made in the presence of a notary, magistrate or an official authorized by law (consul) with the participation of two witnesses. The legator informs the official of their wishes. Upon this, the official writes or prints the will and gives it to the legator to read. The will is read and signed by the legator. The officer signs the will by dates. Immediately after the date and signature are added to the will, the legator declares to two witnesses in the presence of the officer that he/she have read the will and that it contains his/her last wishes. The witnesses sign in the will or print that this declaration was made in front of them and that they deemed the legator capable of saving. The content of the will is not required to be reported to witnesses.
Those who do not have the capacity to act, those who are banned from public service by a criminal court decision, the illiterate, the spouse of the legator, the ancestors and descendants of blood relatives, siblings and spouses of the legator cannot participate in the arrangement of the will as an official or witness. The officials and witnesses who participate in the preparation of the official will, their ancestors and descendants, their siblings and their spouses cannot be a legatee by that will (TCL 536).
The official drafting the official will is obliged to keep the original will. In practice, the institutions that issue the official will notify the Civil Registry about the will. Thus, at the time of death, it can be easily learned by the relevant institutions and persons that the person who passed away wrote a will while he was alive and where this will is stored.
In the Supreme Court practice, the main reasons for the cancellation of the will in terms of form are as follows:
- Although it is stated in the content of the will that the will was prepared by a notary public, the will is signed by the clerk or the chief clerk of the notary
- The witnesses are among the prohibited persons listed in the law: the legator’s spouse, ancestor, descendant, siblings and spouses of these siblings, the legatee of the will
- In Testaments for the Illiterate
If the legator cannot read or sign the will in person, the officer reads the will to him in front of two witnesses, and then the legator declares that the will contains his/her last wishes. In this case, the witnesses must state that the declaration of the will was made in front of them and the legator is merely capable of making a will; they both sign the will by writing or dictating in the testament that the will was read to the legator by the official in front of them and that it contains the legator’s last wishes. (TCL 535)
Again, those who do not have the capacity to act, those who are banned from public service by a criminal court decision, the illiterate, the spouse of the legator, the ancestors and descendants of blood relatives, siblings and spouses of the legator cannot participate in the arrangement of the will as an official or witness. The officials and witnesses who participate in the preparation of the official will, their ancestors and descendants, their siblings and their spouses cannot be a legatee by that will (TCL 536).
These are validity conditions. The absence of any of these terms will invalidate the will.
- The witnesses’ absence of statements that the testament was read to the legator by the official in front of them,
- The witnesses’ absence of statements that the legator declares that the will contains his/her last wishes in front of them and the legator is merely capable of making a will
- Will is not signed by witnesses,
- An indication that the will was read by the legator,
- Additions and extensions in the will are not signed by a notary public are the reasons for the cancellation of the will.
Furthermore,
- Spelling error,
- Not getting a medical report while writing the will to determine that the legator has capacity to act
- If the witness declares the legator as an “individual” but does not declare that “the legator is capable of making a will” do not cause the cancellation of the will.
The violation of the form requirements of the will cannot be evaluated ex officio by the judge. In article 557 of the TCL, it is stated that a lawsuit can be filed for the cancellation of a testamentary disposition including a will, if the following reasons are found; if the dispositions were made at a time when the legator was not entitled to power of disposition, if the dispositions were made as a result of error, deception, intimidation or coercion, if the content of the dispositions, the conditions to which it was attached or the undertakings were against the law or morality, if the dispositions were made without complying with the forms prescribed in the law. It is not possible to decide on the cancellation of the testamentary disposition for any other reason other than these cancellation reasons. Besides; the judge is bound by the cancellation reason stated by the claimant, for example, if a lawsuit for annulment has been filed solely for substantive reasons, they cannot examine the reasons for annulment regarding the form. For example, in a lawsuit filed with the claim that the legator is not mentally healthy, the court cannot examine for lack of form and the will cannot be canceled on this ground.
- Reasons for Cancellation of Hand Written Will
The handwritten testament must be written with the handwriting of the legator from the beginning to the end and must be signed by the legator. It must show the year, month and day of the will. A handwritten will can be left, open or closed, to a notary, magistrate or authorized officer for safekeeping (TCL 538).
From time to time, it is desired to make additions to the will made by the legator. In this case, it is obligatory to write, date and sign every addition made by the hand of the legator. Failure to sign the later additions to the will by adding the date leads to the cancellation of the will. If there is an objection that the will is not the hand product of the legator, a report should be obtained from the Forensic Medicine Institute on whether the article is the product of the legator.
A Common Testament can be made. The deficiency in the form requirements does not cause nullity. However, the will may be canceled. Example; If the letter containing the last wishes of two spouse is written by one person and signed by both, the will will be invalid since the last request of one spouse was not written by that spouse. However, such common wills made in a notary public are also considered as inheritance contracts.
- Reasons for Annulment of the Verbal Will
- Telling the Last Desires
If the legator cannot make an official or hand written testament due to extraordinary circumstances such as imminent death, disconnection of transportation, illness, war, they may apply the verbal will. For this, the legator tells the two witnesses about their last desires and asks them to write a will in accordance with this statement. Prohibitions on witnesses are also valid for witnesses in oral testament, except for the condition of being literate in issuing official will (TCL 539).
The verbal testament is allowed by the law in very exceptional cases. In order for the verbal will to be valid, it is the most important condition that the last wish of the legator has been told at moments such as imminent death, earthquake, flood, war, and such situations preventing the making an official or written will. In other words, an oral will made in an ordinary time is not considered valid in any way.
The legator must inform the two witnesses of their last wishes and impose on them the task of writing or dictating a will in accordance with their statement.
- Documentation
One of the witnesses assigned by the legator immediately writes, signs this document and has the other witness signed, stating their last wishes, place, year, month and day. The two of them submit the written document to the civil court of peace or the civil court of first instance together without delay and declare to the judge that they deem the legator capable of making a will and that they have told them about their last wishes in an extraordinary situation.
Witnesses, instead of arranging a document beforehand, can apply to the court without delay and declare the above points and have the last wishes of the inheritance recorded in a report. If the person applying for the verbal will is in military service, a lieutenant or higher ranking officer; If the person is in a transportation vehicle traveling outside the country, the responsible manager of that vehicle; If the person is being treated in health institutions, the most competent manager of the health institution can replace the judge.
Witnesses are obliged to write down the desires the legator declared to them as soon as possible and submit them to the civil court of peace or the civil court of first instance. As it is written in the second paragraph of the law article, instead of writing down the last requests of the legator, the witnesses can apply to the court without wasting time, declare these matters and take a report. Otherwise, the will will be deemed invalid. The Supreme Court ruled that the testament issued by the witnesses 5 days after death and reported to the court 7 days after the death, is not made within the period stipulated by the law, and ruled that the will should be canceled.
The judge, to whom the verbal testament is referred to be recorded, is contented with simply recording the will, without discussing the conditions and validity of the verbal will. Accordingly, in the case at hand, the court judge is content with just recording the will and does not ex officio check whether the will is valid or not.
There are a number of requirements for those who can be a witness in the official will. The legislator is looking for the same conditions except for one in the oral will. TCL article 539/3 says: “In the preparation of official testaments, prohibitions on witnesses, except for the condition of being literate, are also valid for witnesses in oral will.” Those who do not have the capacity to act cannot witness. Persons banned from public service by a criminal court decision cannot be a witness either. Otherwise, the will may be canceled.
Since the verbal will can only be made under extraordinary conditions, some facilities have been introduced to ensure the validity of the will. Legal regulation has tried to create a number of conveniences, considering the state of war, military service, the possibility that the person is in immediate danger of death and in a state of illness. Provided the opportunity to serve as judges to lieutenants or higher-ranking officers for being in military service. Provided this opportunity to the most competent person of the hospital in a hospital, for example the chief physician. Likewise, in transportation vehicles, the responsible manager of that vehicle, ie pilots in planes, captains in ships, etc. are provided the opportunity to be a judge.
- Annulment
If the state of emergency passes before the legator dies, a month passes after this date and the impossibility of making an official or written will disappears, the verbal will will no longer be ruled. If the person is now able to make an official or written will, the oral will made in an extraordinary situation will no longer be valid.
As seen, writing a testament and checking the form requirements of a written testament require detailed technical examination.
As the lawyers of Çoban & Çelik Law Office, we provide services to our Turkish and foreign clients in issuing legally valid testaments that do not contain reasons for cancellation and we examine whether the testaments previously drawn up by the legators are arranged in accordance with the form requirements. If you want to get further information about the subject, please contact us.