Upon a person’s death, their assets, including both their assets and liabilities, will pass to their legal heirs. The heirs will be responsible not only for the decedent’s assets but also for their liabilities, meaning the debts of the deceased. For various reasons, heirs may not wish to inherit from the decedent’s estate, such as wanting to be relieved from the decedent’s debts, having a dispute with the decedent, renouncing part or all of the inheritance for a consideration, etc. In such a situation, the Turkish Civil Code provides two options for the heir to renounce the inheritance. According to this, an heir may…
Renunciation of inheritance
Renunciation of inheritance agreement
By making a renunciation of inheritance agreement, an heir can renounce either part or the entirety of the decedent’s estate.
The renunciation of inheritance agreement, which grants the heir the right to renounce inheritance, is regulated in Article 528 of the Turkish Civil Code. According to Article 528 of the TCC:
Article 528 – The testator may enter into a renunciation of inheritance agreement with an heir, either without compensation or with compensation.
The renouncing party loses their status as an heir.
Unless otherwise stated in the agreement, renouncing with compensation also has consequences for the descendants of the renouncing party.
The renunciation of inheritance agreement is made before the death of the testator (decedent) and can be concluded among all potential heirs (legal heirs, designated heirs, reserved share, etc.). The agreement between the testator and the heir may be structured as a renunciation of inheritance agreement in exchange for compensation (with consideration) or as a renunciation of inheritance agreement without compensation (without consideration).
If the renunciation of inheritance agreement made between the testator and the heir covers the entire estate, as stipulated in the second paragraph of the relevant law, the heir completely loses their status as an heir. However, if the renunciation of inheritance agreement is made in relation to a specific share of the inheritance, a partial renunciation of inheritance agreement will be discussed, and the heir will lose their status only regarding that specific share, while their status as an heir will continue for the other shares.
As stated in the third paragraph of the relevant article of the law, unless otherwise stipulated, a renunciation of inheritance agreement made with compensation will also have effects on the heir’s descendants. In other words, unless agreed otherwise by the parties, the renunciation of inheritance will affect the heir’s descendants as well, causing them to lose their status as heirs. The phrase “unless otherwise stipulated” in the law implies that there are exceptional cases where the descendants of the contracting heir may not be affected by the renunciation of inheritance agreement. Accordingly, if a renunciation of inheritance agreement is made between the testator and the heir without compensation (i.e., without consideration), the heir’s descendants will retain their status as heirs. If the heir makes a renunciation of inheritance agreement without compensation, the status of the heir’s descendants will be preserved, and they will be able to benefit from the testator’s estate.
As understood from Article 528/1 of the Turkish Civil Code, the renunciation of inheritance agreement is classified into two categories: a renunciation of inheritance agreement with compensation and a renunciation of inheritance agreement without compensation.
RENUNCIATION OF INHERITANCE AGREEMENT WITH COMPENSATION
In a renunciation of inheritance agreement with compensation, the heir will waive their inheritance rights in exchange for a consideration. In return for compensation, the heir will lose their status as an heir. The renunciation of inheritance agreement with compensation is referred to in the second paragraph of Article 565 of the law with the phrase, “Gifts made with the purpose of liquidating inheritance rights before death.”
In a renunciation of inheritance agreement made with compensation, the amount of compensation does not matter, as what is important is that it is likely to arise. The renunciation of inheritance agreement with compensation made between the heir and the testator will also have consequences for the heir’s descendants, and the heir’s descendants will lose their status as heirs as well.
RENUNCIATION OF INHERITANCE AGREEMENT WITHOUT COMPENSATION
In a renunciation of inheritance agreement made without compensation, the heir waives their potential inheritance rights that would arise after the testator’s death without receiving any consideration. The most important difference between a renunciation of inheritance agreement with compensation and one without compensation lies in the consequences they produce. As mentioned, a renunciation of inheritance agreement with compensation also has effects on the heir’s descendants, leading to the loss of their status as heirs. However, in a renunciation of inheritance agreement made without compensation, based on the principle of fairness, the agreement does not produce any consequences for the heir’s descendants, and their status as heirs is maintained.
FORM IN RENUNCIATION OF INHERITANCE AGREEMENT
As understood from the legal provision regarding renunciation of inheritance, the agreement must be concluded between the testator and the heir in the form of a contract. The competency requirements set by Turkish Contract Law for bilateral contracts also apply to the renunciation of inheritance agreement. Accordingly, the parties entering into the renunciation of inheritance agreement must be individuals with full legal capacity, meaning they must be competent, not restricted, and of legal age.
The renunciation of inheritance agreement is subject to a formal requirement. It is not possible to make the renunciation of inheritance agreement orally or in a simple written form. Instead, the agreement must be made in writing in the presence of a notary. Since dispositions upon death are rights closely tied to the individual under Turkish Civil Code, the testator, unlike the heir, must be present personally before the notary. The heir may conclude the renunciation of inheritance agreement through a representative, but the testator does not have this option.
RESULTS OF THE RENUNCIATION OF INHERITANCE AGREEMENT
As a result of entering into a renunciation of inheritance agreement, either for consideration or gratuitous, between the heir and the testator, the heir will lose the right to claim a share of the inheritance, and the heir will no longer be able to make any claims against the estate.
If the renunciation of inheritance agreement between the heir and the testator is for consideration, the agreement will have consequences for the heir’s descendants as well, and the heir’s descendants will lose their status as heirs, thus being deprived of the right to claim a share of the inheritance. However, if the renunciation of inheritance agreement between the heir and the testator is gratuitous, the status of the heir’s descendants as heirs will not change, and their rights to claim from the testator’s estate will remain intact.
CANCELLATION OF THE RENUNCIATION OF INHERITANCE AGREEMENT
The cancellation of the renunciation of inheritance agreement is regulated in Article 529 of the Turkish Civil Code. The renunciation of inheritance agreement will be deemed void in cases where the heir or their descendants are unable to inherit, as specified by the law. In such cases, the renunciation of inheritance agreement will no longer produce legal effects. According to this article:
Article 529 – If the renunciation of inheritance agreement is made in favor of a specific person, and this person becomes unable to inherit for any reason, the renunciation will become void.
If the renunciation of inheritance agreement is not made in favor of a specific person, it is considered to have been made in favor of the descendants of the nearest common ancestor. If they are unable to inherit for any reason, the renunciation will also become void.
CANCELLATION OF THE RENUNCIATION OF INHERITANCE AGREEMENT
The renunciation of inheritance agreement can be subject to cancellation under the “cancellation of the agreement” provisions in certain situations, and the request for cancellation can be made to the civil court of first instance located in the last domicile of the testator. A lawsuit for the cancellation of the renunciation of inheritance agreement must be filed within 1 year from the date the grounds for cancellation are discovered, in the civil court of first instance. This 1-year period for filing a lawsuit is a statute of limitations. The situations in which the cancellation of the renunciation of inheritance agreement can be requested are as follows:
- Lack of legal capacity to enter into an agreement by the parties
- The agreement being contrary to law or morals
- Deficiencies in the formal requirements of the agreement
- Mental incapacity, etc.
In cases where there is collusion, mental reservation, or a joke declaration within the renunciation of inheritance agreement, the agreement will be deemed absolutely void.
RESPONSIBILITY OF THE RENOUNCING PARTY AGAINST THE CREDITORS OF THE ESTATE IN A RENUNCIATION OF INHERITANCE AGREEMENT
Within the scope of the renunciation of inheritance agreement, the responsibility of the renouncing party against the creditors of the estate is regulated in Article 530 of the Turkish Civil Code. According to this article:
Article 530 – If, at the time of the opening of the inheritance, the estate cannot cover its debts and the debts are not paid by the heirs, the renouncing party and the heirs are liable to the creditors for the consideration received from the testator in the five years prior to the testator’s death, as well as for the enrichment at the time of the opening of the inheritance.
If the estate’s debts cannot be covered by the estate’s assets or by the heirs who retain their status as heirs, in such cases, the person who has renounced the inheritance may be called upon under certain conditions. In the case where the renouncing party cannot pay the estate’s debts in any way, provided that there is consideration, the renouncing party is liable for the amount obtained from the renunciation of inheritance agreement with consideration, within the five years prior to the testator’s death and until the opening of the inheritance. The estate’s creditors may refer to the renouncing heir under these conditions.
EXAMPLE COURT DECISIONS RELATED TO THE RENUNCIATION OF INHERITANCE AGREEMENT
DECISION OF THE GENERAL ASSEMBLY OF CIVIL LAW
After it was understood that the decision of resistance was appealed within the statutory period and after reviewing the documents in the case, the following decision was made:
The case concerns the cancellation of the deed and the request for registration.
The court’s decision to reject the case, on the grounds that the plaintiff failed to fulfill their obligation and therefore had no right to request the registration of the contested properties, parcels 267 and 268, in their name, was overturned by the Special Chamber upon appeal by the plaintiff’s lawyer with the above-mentioned reasons. The local court has upheld its previous decision.
The plaintiff’s lawyer has appealed the decision of resistance.
The dispute brought before the General Assembly of Civil Law through resistance concerns whether the plaintiff has fulfilled their obligation under the contract between the parties; depending on the conclusion reached, the issue revolves around whether it is necessary to register the deed of the contested properties, parcels 267 and 268, in the plaintiff’s name.
It should be immediately noted that, in the document titled “Renunciation of Inheritance Agreement in the Form of a Deed” dated September 21, 2001, and numbered 11616, issued by the Düzce 3rd Notary, it states exactly:
“…After examining the identities of the parties involved and hearing the testimonies of the witnesses regarding their personalities, I have concluded that they are competent to perform this action. Following this, the parties who renounced inheritance began speaking in the presence of the witnesses and stated: We renounce our inheritance rights and shares, which will pass to us by inheritance and succession upon the death of our uncle, Ibrahim Sağlam, who was the co-owner of the immovable property located in Ovapınar Village, Köyiçi area, Merkez District, Düzce Province, registered under plot no: 267 and 268, and which is inherited from our grandfather Mustafa Sağlam upon his death. Since we received the rights and shares of the immovable property registered under plot no: 214 in the same village from our uncles, İrfan and Ibrahim Sağlam, which was inherited by them from our grandfather Mustafa Sağlam, we renounce our rights and shares in the above-mentioned properties in favor of our other uncle … because we have received the rights of the immovable property as mentioned above, which is estimated to be worth 500,000,000 TL (five hundred million Turkish lira). Therefore, in accordance with Article 475 of the Civil Code, we declare and acknowledge before the notary and witnesses that we renounce the inheritance with consideration, and thus we will not make any claims or file a reduction lawsuit regarding the parcels mentioned above.”
On the other hand, the person in whose favor the renunciation was made, …, took the floor and said: “I also declare and acknowledge that I accept the statements of the renouncing parties mentioned above exactly as agreed.” He concluded his words.
Ibrahim Sağlam, who was present at the session, took the floor and said: “I also declare and acknowledge that I fully accept the aforementioned words and that I accept the renunciation with consideration as agreed, in the presence of the notary and witnesses.” He concluded his words. The following expressions are recorded: “Renouncing parties: …, …, …, Saniye Toğru; Person in whose favor the renunciation is made: …; The consenting party (decedent): İbrahim Sağlam.”
Furthermore, the plaintiff’s witness Mehmet Karaçayır, in his sworn statement, stated: “I was a witness to the renunciation of inheritance agreement made between the parties at the notary. In the notary’s contract, the plaintiff and the plaintiff’s brother, İbrahim Sağlam, asked me to be a witness, saying that they agreed on the terms written in the document. According to what they told me, they gave the place where İbrahim Sağlam’s house is located to … and also gave a plot of land slightly below the house near a fountain to Hanife Sağlam and …. I believe this plot of land was registered under plot no: 214. I don’t know if a transaction was carried out at the land registry in line with this agreement.”
When the content of the notary deed in the form of an agreement above and the statements of the plaintiff’s witness are examined and evaluated as a whole, it is understood that there is a renunciation of inheritance agreement between the decedent İbrahim Sağlam and the defendants under Article 528 of the Turkish Civil Code (TMK No. 4721) (Article 475 of the Turkish Civil Code No. 743), and furthermore, there is a contract between the plaintiff and the defendants regarding the transfer of inheritance shares under Article 677 of the TMK No. 4721 (Article 612 of the Civil Code No. 743). Considering the statement in the notary deed, which is exactly quoted above: “…we declare and acknowledge that we will not make any claims regarding the aforementioned parcels and that we will not file an action for reduction…” it can be concluded that the defendants have renounced all of their inheritance rights to the immovable properties on parcels 267 and 268, which will pass both from the root decedent Mustafa Sağlam and their uncle, decedent İbrahim Sağlam, in favor of the plaintiff ….
As for whether the plaintiff has fulfilled their obligation or not; the content of the notary deed shows that the defendants declared that they had received the shares of plaintiff … and their uncle İbrahim in parcel 214, stating that the estimated value of the acquired parcel 214 was 500 TL. It is further stated that on 19.10.2001, the disputed parcel 214 was initially transferred to all the heirs and then, on the same day, was sold for 500 TL to Hanife Sağlam, who is not a party to the lawsuit, and later, on 06.12.2005, this property was sold for 27,200 TL to Mehmet Emin Toğru, also not a party to the lawsuit. The property is still registered under this person’s name.
As seen, just shortly after the notary deed for parcel 214 (on 21.09.2001) and the transfer to Hanife Sağlam (the defendants’ mother) for the amount specified in the notary deed (500 TL) on 19.10.2001, it is necessary to accept that the plaintiff has fulfilled their obligation. The fact that the transfer is shown as a “sale” in the land registry does not affect this conclusion.
Therefore, the local court should have ruled in favor of the plaintiff regarding the disputed parcels 267 and 268, and it is incorrect to reject the case based on a mistaken evaluation.
During the discussion in the General Assembly of the Court of Civil Law, some members argued that according to the content of the notary deed in dispute, the defendants had only pledged to transfer the inheritance rights that would pass from their uncle, the deceased İbrahim Sağlam, to the plaintiff …, but there was no statement indicating that they had also pledged to transfer the inheritance share from the original deceased, Mustafa Sağlam. Therefore, regarding the inheritance share from the original deceased Mustafa, the local court’s decision to resist was partly justified, as the inheritance waiver agreement must be made during the life of the testator and with their participation. Since Mustafa, the original deceased, passed away before the notary deed was prepared, the notary deed only covers the inheritance rights that would pass from İbrahim, the testator, and considering that the plaintiff has fulfilled their obligation, the case should be partially accepted, not entirely. For these reasons, it was argued that the local court’s decision should be overturned with this new rationale, but the majority of the Assembly did not adopt this view for the reasons mentioned above.
On the other hand, it is understood that the phrase “…at the defendants’ request…” written as a reason for the transfer of the property in parcel 214 to the defendants’ mother in the Special Chamber’s decision of reversal was written due to an error. This phrase cannot be verified by any information or document found in the case file.
Given this, the local court should have adhered to the reversal decision of the Special Chamber with the additional rationale adopted by the General Assembly of the Court of Civil Law. Therefore, it is contrary to procedure and law to resist the previous decision.
For this reason, the resistance decision should be overturned.
CONCLUSION: With the acceptance of the plaintiff’s lawyer’s appeal objections, the resistance decision is OVERTURNED based on the reversal decision of the Special Chamber and the additional rationale and reason stated above. If requested, the appeal advance fee will be refunded to the person who paid it. The decision was made on 11.05.2016 with a majority vote.
14th Civil Chamber 2018/3787 E., 2021/2893 K.
“Judgment Text”
COURT: Civil Court of First Instance
At the hearing held following the petition filed by the plaintiffs’ attorney on 25.07.2012, requesting the annulment of the inheritance renunciation contract, it was concluded that the case was dismissed with the ruling dated 16.07.2013. The appeal of the plaintiffs’ attorney and the defendants’ attorney to have the decision reviewed by the Court of Cassation was accepted, and after the acceptance of the timely appeal petition, the file and all documents within it were reviewed, and the necessary considerations were made:
JUDGMENT
The case relates to the request for the annulment of the inheritance renunciation contract.
The plaintiffs’ attorney stated that a renunciation contract was made for the plaintiff …, to be cared for until their death. Despite the primary purpose of the renunciation contract being this, the defendants did not care for their father …, and therefore, the annulment of the contract was requested and the lawsuit was filed.
The defendants’ attorney requested the rejection of the case.
The court decided to reject the case.
The judgment was appealed by the plaintiffs’ attorney and the defendants’ attorney.
Since the effects and consequences of dispositions made upon death come into effect after the testator’s death, due to this characteristic, the legislator has tied the establishment of these dispositions to strict formal requirements.
The legislator has provided two different formal requirements for making dispositions upon death. One of these is the unilateral will made by the testator, which can always be revoked (Civil Code Articles 531-544), and the other is the bilateral, binding inheritance contract.
For an inheritance contract to be valid, it must be drafted in the form of an official will according to Article 545/I of the Turkish Civil Code.
Since a waiver of inheritance contract is legally classified as an inheritance contract, the rules explained above will also apply to the establishment of a waiver of inheritance contract.
In the present case, although the court classified the 19.04.2007 contract, which was drawn up at the … 1st Notary, as a waiver of inheritance contract, the contract is a waiver of inheritance contract with respect to … and the parties waiving the inheritance (i.e., …, …, …, …), while it is a contract for the transfer of an unclaimed inheritance share between the other heirs.
Heirs can transfer the rights they inherit either to other heirs or to non-heirs, for a consideration or free of charge.
According to Article 677/1 of the Turkish Civil Code, the validity of agreements regarding the transfer of inheritance shares over all or part of the estate between heirs is subject to written form.
Furthermore, Article 678 of the Turkish Civil Code stipulates that the validity of agreements made before the inheritance opens is subject to the participation or consent of the testator. In other words, without the participation or consent of the testator, agreements made by an heir regarding an inheritance that has not yet been opened with other heirs or a third party are not considered valid.
Although the court’s classification of the case as an inheritance division agreement concerning the heirs and as a return of a donation concerning the deceased was not deemed correct, the rejection of the case was found to be correct. Therefore, the reasoning was amended in accordance with Article 438/IX of the Civil Procedure Law (HUMK), and the decision was upheld.
CONCLUSION: For the reasons explained above, the appeals of the plaintiff’s attorney and the defendant’s attorney are accepted, and the decision is upheld with the reasoning corrected. The advance payment of the court fee will be refunded to the payers. The decision is subject to correction within 15 days from the notification of the decision, and it was decided by unanimous vote on 19.04.2021.
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