The Enforcement of the Will - Av. Gökhan Akgül

What is a Will?

According to Turkish Civil Law, dispositions upon death can be examined under two headings: inheritance contracts and wills. Indeed, Article 514 of the Turkish Civil Code No. 4721 states, “The testator, within the limits of freedom of disposition, may dispose of all or part of their assets through a will or inheritance contract. The portion not disposed of by the testator will pass to their legal heirs.” A will is a declaration of the testator’s intention, made before their death, explaining how their estate will be distributed, which may be in official, verbal, or written form. However, the legislator has imposed strict formal requirements for a will. Therefore, not every verbal or written declaration of intent is valid as a will.

A) Official Will

An official will is prepared by a public official in the presence of two witnesses. According to Article 532 of the Turkish Civil Code, a public official may be a peace judge, a notary, or another official authorized by law. The process works as follows:

The testator informs the public official of their wishes. Following this, the official writes or dictates the will and provides it to the testator for reading.
The will is read and signed by the testator.
The official signs the will, adding the date.
Immediately after the date and signature are added to the will, the testator declares in the presence of two witnesses that they have read the will and that it contains their final wishes.
The witnesses sign the will, writing or dictating that the declaration was made in their presence and that they consider the testator to be competent to dispose of their estate.

It is not necessary for the witnesses to know the content of the will.

B) Handwritten Will

According to Article 538 of the Turkish Civil Code, “A handwritten will must be written in the testator’s handwriting and signed, with the year, month, and day of its creation indicated, from beginning to end. The handwritten will may be left with a notary, a peace judge, or an authorized official, either openly or in a sealed form, for safekeeping.”

C) Oral Will

If the testator is unable to make an official or handwritten will due to extraordinary circumstances such as imminent danger of death, disruption of communication, illness, or war, they may resort to an oral will. The testator conveys their final wishes to two witnesses and requests them to write a will according to their statements. In the case of an official will, the conditions related to literacy, as well as the restrictions on witnesses, also apply to the witnesses in an oral will.

What is the Execution of a Will?

In short, the execution of a will can be described as the implementation, fulfillment, or enforcement of the will.

The Execution of a Will Lawsuit

The subject of the lawsuit for the execution of a will is the asset value of the relevant will. According to the Court of Cassation, lawsuits referred to as the execution of a will are not for the establishment of a proprietary right, but for determining whether the will has been opened and not been objected to, or whether any objections made have been resolved. In order to implement the will, its execution must take place. After the will has been opened in accordance with the legal procedure and becomes final, there is a one-year statute of limitations for its annulment. Regardless of whether the will is valid or not, it will be opened by the civil court of the place where the testator resides within one month from its delivery and read to the relevant parties. According to Article 598 of the Turkish Civil Code, unless an objection is made within one month from the notification of the heirs or other beneficiaries of the will, a document showing that the person in favor of whom the disposition is made is appointed as an heir or beneficiary by the civil court is issued.

Who Can a Lawsuit for the Execution of a Will Be Filed Against?

A lawsuit for the execution of a will can be filed against all legal heirs and designated heirs of the deceased person. The decision made in a lawsuit for the execution of a will is considered a final judgment only for the parties involved in the case. It does not create a final judgment for those outside the parties.

The Competent and Authorized Court in a Lawsuit for the Execution of a Will

A lawsuit for the execution of a will falls under cases related to property rights. Therefore, according to Article 2 of the Civil Procedure Code (HMK), the competent court is the civil court of first instance, regardless of the value or amount of the subject of the case. However, in the opening and reading of the will, the competent court is the civil court of peace (TMK, Article 596/I). In lawsuits for the execution of a will, the authorized court is the court of the deceased’s last domicile.

Cancellation of the Will

According to Article 557 of the Turkish Civil Code, the following conditions are required for the cancellation of dispositions related to death:

If the disposition was made when the testator lacked the capacity to dispose of their property,
If the disposition was made as a result of mistake, fraud, coercion, or duress,
If the content of the disposition, its conditions, or obligations are contrary to law or morality,
If the disposition was made without complying with the formal requirements set out in the law.

The cancellation lawsuit may be filed by an heir or a beneficiary under the will who has an interest in the cancellation of the disposition.

Statute of Limitations

The right to file an annulment lawsuit begins from the date the plaintiff learns about the disposition, the grounds for annulment, and their entitlement to it, with a one-year limitation period. In any case, for wills, the limitation period starts from the date the will is opened, and for other dispositions, it starts from the date the inheritance passes. The statute of limitations is ten years against good faith defendants and twenty years against bad faith defendants.

The ten-year limitation period for a will creditor’s right to file a lawsuit also applies to the enforcement of the will. Although there are different interpretations regarding the starting point of this period, the approach that considers the finalization date of the case concerning the opening of the will is more beneficial to the will creditor.

Court of Cassation Decisions Regarding the Enforcement of Wills

In order for the case of the enforcement (execution) of the will to be heard, it is necessary that the will, after being opened and read, has not been challenged, or if challenged, the related cases for the annulment or reduction of the will must have been finalized. Therefore, it is not possible for both the annulment (or reduction) of the will and the enforcement of the will to be heard in the same case file. In this situation, the court should have separated the joined case concerning the enforcement request and registered it as a separate case. It was found to be incorrect for the court to issue a judgment on the merits of the case regarding the enforcement in writing. In light of this, without considering the principles outlined above, issuing a judgment as written is incorrect, and the appeals are deemed valid for the reasons stated. Consequently, the judgment was overturned according to Article 428 of the Civil Procedure Code (HUMK) on 23.12.2014 by unanimous decision. (Court of Cassation, 3rd Civil Chamber 2014/7489 E., 2014/17102 K.)

The case concerns the request for the enforcement of the will. As emphasized in the decision of the Civil General Assembly dated 13.2.1991, numbered 648-65, lawsuits referred to as “enforcement of the will” are not for the establishment of the same right, but only for the determination of whether, after the completion of the notification procedures regulated in Articles 596 and the following of the Turkish Civil Code, and after the expiration of the required legal periods, the will has not been contested, or if contested, the annulment or reduction of the will was not requested, or the objections were unsuccessful, and therefore it is finalized. According to Article 595 of the Turkish Civil Code (TMK), after the testator’s death, regardless of whether the will is valid or not, it must immediately be delivered to the probate judge, and the will must be opened and read to the interested parties within one month starting from its delivery. After the will is officially opened and the decision to read it becomes final, a one-year statute of limitations for annulment begins. In the case of the enforcement of the will, the certified copy of the decision regarding the opening of the will, including the finalization date, should be obtained and included in the case file. In the present case, the parties were asked about the existence of a case file confirming the opening and reading of the will, but despite the inability to determine the existence of a case for the opening of the will, without giving the parties time to file a case, the court ruled to dismiss the case based on the reasoning mentioned above. Therefore, the court should first inquire again whether there is a case for the opening of the will, and if necessary, send a letter of inquiry to the Probate Courts to investigate whether such a case exists. If the existence of the case for opening the will is determined, the case should be suspended until its finalization, and if no such case exists, the parties should be given time to file a new case, and the case will be suspended accordingly, and a final decision will be made based on the outcome. Issuing a judgment in writing without considering the principles explained above is incorrect. The objections to the appeal are valid for these reasons, and thus, the judgment is overturned in accordance with Article 428 of the Civil Procedure Code (HUMK) with unanimous decision on 26.09.2016. (Court of Cassation, 3rd Civil Chamber 2015/14751 E., 2016/11242 K.)

The case concerns the request for the enforcement of the will. In the case, the enforcement of the will of the deceased … which was executed by the Kocaali Notary on 26.04.2004, with the serial number … was requested. The court decided to accept the case, and the defendant’s representative … filed an appeal within the time frame. In order for the enforcement of the will to be requested, the will in question must have been opened. Therefore, in the case of the enforcement of the will, it is necessary to first investigate whether the will has been opened, and then to obtain and include in the case file a certified copy of the decision regarding the opening of the will, including the date of finalization. In the present case, by our Chamber’s decision dated 27.11.2017, numbered 2016/8941 E. and 2017/16491 K., it was requested that the file regarding the opening of the will, numbered 2006/201, 2006/269, from the Kocaali Civil Court be placed in the case file. Additionally, the detailed investigation of the defendant …’s address was requested, and the reasoned decision and the appellant’s appeal petition should be notified in accordance with the procedures set out in the Notification Law, with the waiting period for the appeal to pass before the appeal examination takes place. It was determined that the deficiency in the notification process had been resolved and that the file concerning the opening of the will, numbered 2006/201 and 2006/269 from the Kocaali Civil Court, had been placed in the case file and sent to our Chamber. However, it was understood that the finalization of the will-opening procedure had not been completed, and the case remains in pending status. Therefore, the court should return the file, which includes the will-opening file from the Kocaali Civil Court, numbered 2006/201 and 2006/269, for the finalization process to be carried out, and it was unanimously decided on 02.12.2019. (Court of Cassation, 3rd Civil Chamber, 2019/5533 E., 2019/9582 K.)