DRAFTING OF A WILL, ITS VALIDITY, AND ACTION FOR CANCELLATION

What is a Will?

A will is a unilateral declaration of intent in which a person determines how their estate will be distributed after their death. In other words, through a will made during their lifetime, a person can decide who will be heirs or what each person will receive after their passing. This legal act is called a will. Article 531 of the Turkish Civil Code No. 4721 states: “A will may be made in an official form, in the handwriting of the testator, or orally.”

Types of Wills

According to Article 531 of the Turkish Civil Code No. 4721, a will can be prepared in three ways:

1. In an official form,
2. In the testator’s own handwriting,
3. Or orally.

1.Will Prepared in Official Form

An official will is prepared by a public officer in the presence of two witnesses. The public officer may be a magistrate, a notary, or another official authorized by law.

Function of the Officer:

1. The testator informs the public officer of their wishes. The officer then writes or has the will written and presents it to the testator for reading.
2. The will is read and signed by the testator.
3. The officer dates the will and signs it.

Participation of the Witnesses:

1. Immediately after the date and signature are placed on the will, the testator declares to two witnesses, in the presence of the officer, that they have read the will and that it reflects their final wishes.
2. The witnesses write or have written on the will that this declaration was made before them and that they consider the testator competent to make the disposition, and they sign it.
3. It is not mandatory to inform the witnesses of the contents of the will.

Preparation Without Being Read or Signed by the Testator

1. If the testator is unable to read or sign the will personally, the officer reads the will to them in the presence of two witnesses, after which the testator declares that the will reflects their final wishes.
2. In this case, the witnesses write or have written on the will that the testator’s declaration was made before them and that they consider the testator competent to make the disposition, and that the officer read the will to the testator in their presence and that the testator declared it contains their final wishes, and they sign it.

Prohibition of Participation in the Preparation

According to Article 536/1 of the Turkish Civil Code No. 4721, the following persons are not allowed to participate in the preparation of an official will as an officer or witness:

• Persons without legal capacity to act,
• Those barred from public service by a criminal court decision,
• Those who are illiterate,
• The testator’s spouse, ancestors and descendants, siblings, and the spouses of these persons.

Persons Who Cannot Benefit from a Will

According to Article 536/2 of the Turkish Civil Code No. 4721, the following persons cannot be beneficiaries under a will:

• The official officer and witnesses who participated in the drafting of the formal will,
• Their ascendants and descendants by blood, their siblings, and the spouses of these persons.

Storage of the Will

The official responsible for drafting the formal will is obliged to keep the original of the will in safekeeping.

2- Holographic Will

A holographic will is a will written entirely in the testator’s own handwriting. For the holographic will to be valid, it must be written and signed by the testator from beginning to end, with the year, month, and day of its execution clearly indicated. The holographic will may be left, either open or sealed, with a notary public, a magistrate, or another competent official for safekeeping.

3- Oral Will

An oral will is regulated under Article 539 of the Turkish Civil Code No. 4721:

“If the testator, due to extraordinary circumstances such as imminent danger of death, interruption of transportation, illness, or war, is unable to make a formal or handwritten will, they may resort to an oral will.

For this purpose, the testator expresses their last wishes to two witnesses and instructs them to write or have written a will in accordance with this declaration.

Except for the requirement of literacy applicable to formal wills, the prohibitions concerning witnesses also apply to witnesses in oral wills.”

Documentation of the Oral Will

The documentation of an oral will is regulated under Article 540 of the Turkish Civil Code No. 4721:

“One of the witnesses appointed by the testator immediately writes down the last wishes expressed to them, specifying the place, year, month, and day, signs the document, and has the other witness sign it as well. Together, they promptly submit the written document to a magistrate or civil court and declare to the judge that they consider the testator competent to make a will and that the testator communicated their last wishes to them under extraordinary circumstances.

Instead of preparing a document beforehand, the witnesses may promptly apply to the court and have the testator’s last wishes recorded in the minutes by declaring the above matters.

If the person resorting to an oral will is serving in the military, a lieutenant or higher-ranking officer acts in place of the judge; if the person is on a means of transportation traveling outside the country, the responsible manager of that vehicle acts as the judge; and if the person is receiving treatment in a healthcare institution, the highest-ranking administrator of that institution acts as the judge.”

Loss of Legal Effect

If the testator later has the opportunity to make a will in another form, the oral will loses its legal effect one month after that date.

Conditions for the Validity of a Will

• The subject of the will must be specific or determinable,
• The testator must have the capacity to distinguish (mental competence) and be at least 15 years old,
• The will must comply with the formal requirements set out in the Turkish Civil Code, as detailed above under “Types of Wills,”
• The will must not be made as a result of mistake, deceit, fear, or coercion,
• The will must not be contrary to law or morality.

Lawsuit for the Annulment of a Will

A lawsuit for the annulment of a will may be filed for the following reasons:

• If the will was made when the testator lacked testamentary capacity,
• If it was made as a result of mistake, deceit, intimidation, or coercion,
• If its content, attached conditions, or obligations are contrary to law or morality,
• If it was made without complying with the formal requirements prescribed by law.

Who Can File a Lawsuit for the Annulment of a Will?

The annulment lawsuit may be filed by an heir or a legatee who has an interest in the annulment of the disposition.

Subject of the Annulment Lawsuit

The lawsuit may concern the annulment of all or part of a disposition upon death. If the annulment lawsuit is based on the defect arising from the participation of persons who benefited from the disposition upon death — or their spouses or relatives — in the preparation of the disposition, only those specific benefits shall be annulled, not the entire disposition.

Statutes of Limitation

The right to file an annulment lawsuit expires one year after the date on which the plaintiff learns of the disposition, the reason for annulment, and their own entitlement. In any case, it expires ten years after the will is opened against bona fide defendants, and twenty years against those who are not in good faith. Nullity, however, may always be invoked as a defense.

Competent and Authorized Court

In a lawsuit for the annulment of a will, the competent court is the Civil Court of First Instance. The authorized court is the court of the deceased’s last place of residence.

Decisions of the High Court

“The case concerns the annulment of a will based on the legal grounds listed in Article 557 of the Turkish Civil Code No. 4721, or, if not applicable, claims for reduction (tenkis) based on the violation of reserved shares. In light of the above-mentioned legal provisions, it is understood that a preliminary injunction may be imposed on the subject matter of the dispute if the legal conditions are met.

In the present case, the plaintiff’s primary request is the annulment of the will. Since the plaintiff has not claimed the existence of a court decision enforcing the will, it cannot be argued at this stage that any change arising from the will sought to be annulled would make it significantly difficult or impossible to exercise the right, or that a delay would cause harm or serious damage. This is because the will requested to be annulled has not yet been enforced.

On the other hand, regarding the plaintiff’s secondary request for a preliminary injunction in relation to reduction (tenkis), a reduction lawsuit is not a claim concerning specific immovable property but is related to a receivable. Therefore, since the reduction request concerns a receivable and the immovable property is not part of the same case, the condition for applying a preliminary injunction to the subject matter of the dispute is not met in the present case.

Consequently, taking into account that the file involves a request for either annulment or reduction of the will, it is understood that the legal conditions for a preliminary injunction under Article 389/1 of the Turkish Code of Civil Procedure No. 6100 are not met, and the decision of the first-instance court to reject the request for a preliminary injunction is correct.”

“In this respect, based on the documents in the file and the reasoning of the interlocutory decision under appellate review, it is understood that the first-instance court did not make any errors in applying the law or in its reasoning, and that the dispute was correctly defined. Therefore, the interlocutory decision under review is legally compliant in terms of both procedure and substance, and it was necessary to reject the plaintiff’s unfounded appeal on the merits pursuant to Article 353/1-b.1 of the Turkish Code of Civil Procedure No. 6100.” (Trabzon Regional Court of Justice, 1st Civil Chamber, 2022/1243 E., 2022/1336 K., 21.10.2022)

“The case concerns the annulment of a handwritten will. In the main and consolidated cases, the plaintiffs stated that it was necessary to determine whether the handwritten will dated 15.07.2014 was the product of the testator’s own hand. The court should have conducted this investigation by obtaining signature and handwriting samples of the testator from the relevant institutions as described above before issuing a judgment. However, it was incorrect to conclude that the will was the product of the testator’s own hand solely based on the report of the Forensic Medicine Physical Expertise Department dated 14.12.2017, which involved an incomplete examination limited to signature analysis.” (Turkish Court of Cassation, 7th Civil Chamber, 2023/2441 E., 2023/3672 K., 06.07.2023)

“The case concerns the annulment of the will, or if not possible, a claim for reduction (tenkis).”

Article 557 of the Turkish Civil Code No. 4721 enumerates the limited grounds for the annulment of a will. These are: lack of legal capacity, the will being made as a result of mistake, deceit, intimidation, or coercion, the content of the disposition or its attached conditions or obligations being contrary to law or morality, and the disposition being made without compliance with the formal requirements prescribed by law.

One of the grounds for the annulment of a will, intimidation (duress), refers to actions that violate a person’s free will, forcing them to make a declaration contrary to their true intent, which is not permitted by law. Duress is classified into two types: material and moral. Material duress occurs when physical pressure is applied to compel someone to perform an act—for example, forcibly holding someone’s hand to make them sign a contract. Moral duress, on the other hand, involves creating fear in a person through threats to induce them to perform a desired act.

Any form of duress that affects the creation of a disposition upon death constitutes a ground for annulment. However, for both types, the duress must be serious, pose a significant danger, and the threat must be immediate in its effect. The threat must be directed personally at the party to the act or their close relatives, be unjust and unlawful, target the person, their honor, life, property, or liberty, and there must be a causal link between the threat and the act performed.

Furthermore, according to the first paragraph of Article 504 of the Turkish Civil Code (TCC): “A disposition upon death made by the testator under the influence of mistake, fraud, intimidation, or coercion is invalid. However, if the testator does not revoke the disposition within one year from the date they became aware of the mistake or fraud, or from the date they are freed from the effect of intimidation or coercion, the disposition is considered valid.”

In the concrete case, it was alleged that the will in question was prepared as a result of the defendant’s pressure and threats. The court ruled that the lawsuit seeking the annulment of the will should be dismissed. Considering the statements of impartial witnesses heard in the file, the case files filed by the testator against the plaintiffs during their lifetime, and the documents related to the complaint submitted to the public prosecutor, it could not be proven that the testator was under coercion strong enough to impair their will at the time the will was prepared, nor that such influence continued after its preparation.

Accordingly, within the framework of the material and legal facts explained above, it was appropriate for the court to dismiss the lawsuit for the annulment of the will, taking into account that the plaintiffs could not prove the existence of the facts justifying the annulment.

However, it was deemed incorrect for the court to have dismissed the reduction (tenkis) lawsuit on the grounds of the statute of limitations.

Article 571 of the Turkish Civil Code, titled “Limitation Periods,” provides: “The right to file a reduction (tenkis) lawsuit expires one year from the date the heirs become aware that their reserved portion has been impaired, and in any case, ten years from the date of the opening of the will or, for other dispositions, from the date of the estate’s opening. If the annulment of one disposition causes the previous one to take effect, the periods begin from the date the annulment decision becomes final. The claim for reduction can always be raised as a defense.”

According to Article 571 of the Turkish Civil Code, in reduction lawsuits, the one-year limitation period begins from the date the reserved-share heir (plaintiff) learns that their share has been impaired.

In light of these provisions, in the concrete case, it is understood that the plaintiffs learned of the will and the impairment of their reserved share during the hearing of the Adana 3rd Civil Court of Peace case file No. 2014/1201 on 13.11.2014, and that the one-year limitation period prescribed in Article 571 had not elapsed between 13.11.2014 and the date they filed the present lawsuit on 10.12.2014.

Accordingly, it was incorrect for the court to dismiss the reduction lawsuit on the grounds of the limitation period in its written reasoning, and the judgment needed to be overturned. (Court of Cassation, 7th Civil Chamber, 2021/5409 E., 2022/6693 K., 08.11.2022)

Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN