What is a Will?
A will is a legal document that determines how a person’s estate will be divided after his or her death. The person who leaves an inheritance (muris) can leave his/her inheritance to certain persons or institutions, set certain conditions or make different distributions among the heirs. However, for a will to be valid, it must comply with certain formal requirements and legal rules.
If a will is invalid, the division of inheritance is made directly according to the general provisions of inheritance law and the will of the testator is not taken into account. This may lead to legal disputes between heirs.
Conditions for the Validity of a Will
Compliance with Form Requirements
According to the Turkish Civil Code, wills must comply with certain formal requirements. Types of wills are as follows:
- Official Testament: It is drawn up in the presence of two witnesses before a notary, judge or authorized official. It is the type of will with the strongest legal validity.
- Handwritten Will: It must be written entirely in the heir’s own handwriting, dated and signed.
- Oral Will: In extraordinary circumstances, a will made orally in the presence of two witnesses and then reduced to writing.
Wills that do not comply with these conditions are considered invalid. For example, a handwritten will that is not dated or missing a signature is deemed legally null and void.
Inheritor’s Capacity
A person must have certain mental and legal capacity to make a will. The testator
- 15 years of age or older
- Having the power of discernment (good mental health)
is required. If it is proven that the testator was mentally incompetent at the time he/she made the will, the will may be annulled.
Reservation of Reserved Shares for Mandatory Heirs
In inheritance law, the right of reserved share is recognized for certain heirs. The testator may dispose of his/her assets as he/she wishes, but may not violate the reserved shares of the following persons:
- Descendants (children, grandchildren)
- His parents
- Surviving wife
If the will violates the reserved shares of these persons, the heirs with reserved shares may request the annulment of this disposition by filing a lawsuit for annulment.
What Happens in Case of Invalidity and Revocation of a Will?
Inheritance Sharing is Made According to Legal Inheritance Rules
If a will is deemed invalid, the division of inheritance is made directly according to the rules of legal heirship. According to the Turkish Civil Code, the inheritance is divided as follows:
- First Class: The children and grandchildren of the deceased are heirs.
- Second Class: The parents of the deceased and their descendants are heirs.
- Third Class: The grandparents of the deceased and their descendants are heirs.
- Surviving Spouse: The spouse inherits together with the other heirs in certain proportions.
If there is no heir, the inheritance passes to the state.
Unjust Inheritance Acquisition and Lawsuits
If there are persons who unfairly benefit from the inheritance based on an invalid will, other heirs may file a lawsuit and request the annulment of the inheritance. These lawsuits are usually
- Will annulment case
- Equalization lawsuit
- Muris collusion case
as
Subsequent Emergence of the Will
If a valid will emerges after the inheritance has been divided according to the legal heirs, the division of inheritance can be reorganized. However, in this case, the statute of limitations and forfeiture periods should be taken into account.
Objection to Will and Annulment Cases
Will Revocation Case
Heirs may file a lawsuit for the annulment of a will that is deemed to be unlawful. These lawsuits can be filed on the following grounds:
- The will is contrary to the formal requirements
- The inheritor is incapacitated
- The will was made under duress, threat or fraud
The time limit for filing a lawsuit is 1 year from the date of learning that the will has been opened, and 10 years in any case.
Equalization Case
If the will violates the rights of the heirs with reserved shares, the reserved shares can be protected by filing an action for equalization. For example, if a father has donated his entire estate to a foundation, his children can claim their reserved shares by filing a lawsuit for equalization.
Muris Collusion Case
The heir may transfer his assets to another heir or a third party in order to evade his inheritance from some heirs. In such a case, other heirs can recover their rights by filing a case of muris collusion.
An invalid will may have serious consequences for the division of inheritance and may lead to protracted litigation between heirs. For this reason, it is of great importance to seek legal advice when preparing a will and to make arrangements in accordance with the legal rules of inheritance. Otherwise, there may be negative consequences such as the inheritance not being shared as the executor wishes and the heirs losing their rights.
