14th Law Office, Case No. 2015/1687, Decision No. 2015/6049
“Judgment”
COURT: Izmir 7th Criminal Court of First Instance
DATE: May 13, 2013
CASE NO.: 2009/45-2013/222
Following the proceedings initiated upon the petition filed by the plaintiffs’ attorney on February 2, 2009, seeking the annulment of the defendants’ inheritance rights; and following the Supreme Court’s decision dated May 13, 2013, accepting the case for a hearing, the plaintiffs’ attorney and the defendants’ attorney appeared without a hearing on on the scheduled date of June 2, 2015, the plaintiffs’ attorney, Attorney N.S., was present. No one else appeared.
The open hearing began. After it was established that the appeal petition had been filed in a timely manner, the oral statements of those present were heard. The hearing concluded. The case was decided. Subsequently, the case file and all documents contained therein were reviewed, and the necessary assessments were made:
_DECISION_
In the lawsuits they filed against the defendant Nükhet, the plaintiffs sought the annulment of the will and its consequences on the grounds that the heir Meral had disinherited them through the will she executed on August 24, 2004, at the Izmir Notary’s Office; In their petitions dated July 15, 2011, they directed their claims against the other defendants and argued that the real property donated to the intervenors should be investigated on the grounds that it was intended to divert assets from the estate. Defendant
Nükhet stated that the grounds for disinheritance were valid; the co-defendants, however, argued that the statute of limitations for disinheritance had expired and that the parties to the case could not be changed, and thus sought dismissal of the case.
The court ruled that the plaintiffs must each pay 65,924.63 TL to the defendant Nükhet and that each plaintiff may claim 21,066.92 TL separately from the co-defendants.
The decision was appealed by the attorneys for both the defendant and the plaintiffs.
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Based on the hearing, the evidence gathered, and the contents of the case file, the other objections raised by the attorneys for the defendant and the plaintiffs, which fall outside the scope of the following paragraph, were found to be unfounded and were dismissed.
2-The case concerns claims for the annulment of the will and objections to the will.
An heir whose share of the inheritance is reserved may be disinherited from the entire estate or a portion thereof by a unilateral will. The reason for disinheritance must be clearly and specifically stated in the will. Reasons for disinheritance can be grouped under two main headings: ordinary and protective. Ordinary grounds for disinheritance include committing a serious crime against the testator or one of the testator’s relatives, or failing to fulfill obligations arising from family law to a significant extent. Since the testator always retains the right to dispose of the portion of the estate other than the reserved share, no conditions for disinheritance (disposition) are required for that portion.
The disinherited heir may challenge the disinheritance by filing a lawsuit against the decedent’s statutory heirs and, if any, the decedent’s descendants. In a lawsuit challenging the disinheritance of an heir, the burden of proving that the grounds for disinheritance have occurred rests with the defendant’s heirs or the heir designated in the will.
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If no grounds for disinheritance are presented or are not proven by the defendants, the disinherited heir may request the revocation of the reserved share. Even in this case, the disinherited heir may not claim an amount exceeding the reserved share, and the disinheritance is carried out excluding the reserved share. If there is a clear error in the grounds for disinheritance, the disinheritance is completely annulled and treated as if it had never occurred.
In the case in question, the testator, Meral, stated in her will—drawn up at the Izmir Notary Office on August 24, 2004—that the plaintiff, V., had failed to fulfill her duties as an adopted daughter, had not returned the savings she had received as a loan, and had embezzled assets; she also disinherited her daughter, Nilgün, on the grounds that she had failed to fulfill her duties as an adopted daughter. The testator has no heirs other than the plaintiffs and the defendant Nükhet. Although the burden of proof rests with the defendant Nükhet under Article 512 of the Turkish Civil Code, she failed to prove that the grounds for dismissing the case had been met.
For this reason, the plaintiffs have continued the case with a request for reconsideration, arguing that the dismissal of the case is invalid pursuant to the final paragraph of Article 512 of the Turkish Civil Code. In the report dated March 28, 2013, the assets and liabilities of the estate were determined, the value subject to attachment was established, and the plaintiffs’ hidden shares were identified. However, although the value assessed in the testator’s attachment account at İşbank was accepted as 45,674.78 TL, it was reported that the amount transferred via İ…B. was 48,644.66 TL.
Furthermore, although the plaintiffs stated that they had paid the maintenance fees and tax liabilities on the decedent’s real estate after his death, no sufficient investigation or research was conducted on this matter, and these expenses were not taken into account in determining the estate’s liabilities. Furthermore, although Article 507/2 of the Turkish Civil Code sets the three-month living expenses for persons living with the deceased and providing for their care at 1,800.00 TL, it has not been clearly established with whom and where the deceased lived. The amount of the estate must be determined by assessing the decedent’s assets and liabilities as of the date of death, taking into account the aforementioned deficiencies.
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Furthermore, pursuant to Article 571 of the Turkish Civil Code, an objection action must be filed within one year from the date the claimant learns that their share has been impaired, and in any case, within ten years. In the specific case at hand, the plaintiffs stated in their petition dated February 2, 2009, that the testator had transferred the real property belonging to the defendant to the co-defendants, who are the children of the defendant Nükhet. The plaintiffs made this real property the subject of the lawsuit in their co-defendant complaint dated July 15, 2011. As can be seen, the one-year statute of limitations under Article 571 of the Turkish Civil Code has expired.
Therefore, although the court was compelled to dismiss the action against the co-defendants on the grounds of the statute of limitations, it determined that issuing a written decision was inappropriate, and for these reasons, the judgment was reversed.
CONCLUSION: Based on the reasons explained in subparagraph (1) above, the other objections raised by the defendants’ and plaintiffs’ attorneys are dismissed; based on the reasons explained in subparagraph (2) above, the objections raised by the defendants’ and plaintiffs’ attorneys are accepted, and the judgment becomes final; and the collection of 1,100 TL in attorney’s fees from the defendants and payment of this amount to the plaintiffs. This decision was rendered unanimously on June 2, 2015, and the parties are granted 15 days from the date of service of the decision to file a motion for correction.