TC
SUPREME
Law Office
FILE NO. 2015/2607
DECISION NO. 2015/9898
DATE OF DECISION: 11/05/2015
COURT: Ivrindi Court of First Instance
DATE: 13/11/2013
NUMBER: 2013/26-2013/193
Following the hearing held upon the petition filed by the plaintiff’s attorneys against the defendants on 08.02.2013 and the request for renunciation of inheritance; Following the review of the decision dated 13.11.2013 issued by the High Court upon the acceptance of the case by the defendant E.A., the acceptance of the appeal petition, which was requested by the court, and the review of the file and all documents therein, and if deemed necessary:
decision
After determining that the inheritance was in debt, the plaintiff’s representative, Muris A. E., requested a decision to renounce the inheritance.
The court ruled that the inheritance was in debt and decided to renounce it.
The defendant E. A.’s representative objected to this decision.
Legal and appointed heirs may renounce the inheritance. If the testator’s inability to pay at the time of death is clearly defined or officially determined, the inheritance is deemed to have been renounced. (TMK Art. 605)
In cases filed regarding the renunciation of inheritance, it must be investigated whether the inheritance is clearly in debt. If a certificate of incompetence is issued at the end of the enforcement proceedings, it is accepted that the testator was in debt. Otherwise, banks, the traffic registration office, tax offices, municipalities, and the land registry office should be consulted in accordance with the procedure regarding whether the estate is in debt and whether the deceased had any assets. The deceased’s receivables and debts should also be investigated by the police, and the assets and liabilities should be determined in a manner that leaves no room for doubt, taking into account the assets and debts to be pursued.
The request to determine whether the estate was indebted at the time of the testator’s death is not a notification lawsuit; but rather a type of lawsuit that aims to determine a legal situation that is an exception to the legal rule, leading to the conclusion that “the heirs acquire the entire inheritance in accordance with the law upon the death of the testator” (TMK. m. 599/1) without the heirs having to declare a will. Due to this nature, the injured party is subject to costs, and in the event of acceptance or rejection, the injured party’s attorney’s fees are also determined.
Furthermore, in order to request the renunciation of inheritance pursuant to Article 605 of the Turkish Civil Code, which concerns the application of provisions on guardianship, protection, and inheritance, the injured party must have a lawyer authorized by a power of attorney in accordance with the second paragraph of the article. In order to remedy these deficiencies, the plaintiff must first have a lawyer authorized by a power of attorney to file a lawsuit, as it is understood that a decision must be made in accordance with the principles outlined above in cases where there are no grounds for the lawsuit.
The court ruled that it was not correct to issue a written judgment based on an incomplete examination without clearly determining the debt as of the date of the deceased’s death, and therefore, the decision should be overturned for the reasons stated.
CONCLUSION:
For the reasons explained above, it was decided that the defendant E.A., on 05.11.2015, unanimously accepted the attorney’s objections and revoked the judgment, refunded the advance fee paid upon request to the payer, and opened the way for the correction of the decision within 15 days from the notification of the decision.