The Obligation to Prove the Validity of the Reason for Exclusion of Excluded Persons
In its decision dated March 26, 2019, No. 2017/13850E -2019/2573K dated March 26, 2019, states: “In the will dated September 5, 2007, the testator stated that the reason for exclusion from inheritance was that the plaintiffs, who are his daughters, did not take care of him despite his illness. In the present case, until the deceased came to his residence in the village, he went to … from time to time for treatment due to his illness, his wife died on July 3, 2007, and some time later, the deceased’s son moved to … and stayed there, while the plaintiffs residing in … came to the village until the date of deportation and fulfilled their obligations arising from family law towards the testator; in other words, the defendants who benefited from the exclusion cannot prove the accuracy of the reason given.
Upon examination of the decision, it is seen that when an heir is disinherited, the other heirs are obliged to prove the validity of the reason for disinheritance. In the case in question, he disinherited his daughters on the grounds that they did not care for him when he was ill. The plaintiffs also filed a lawsuit seeking the annulment of the exclusion. In this case, although the other heirs, who were the defendants, were obliged to prove that the reason for exclusion was valid, they failed to prove this, and it was found that the witnesses and plaintiffs had not neglected their family obligations and that their exclusion from the inheritance was unjust.
A Faulty Spouse Cannot Be an Heir in a Divorce
In its decision dated October 18, 2017, numbered 2016/14899E-2017/7670K, the 14th Civil Chamber of the Supreme Court ruled that, “As is known, Article 181 of the Turkish Civil Code stipulates that the spouse found at fault in a divorce cannot be an heir, if a separate determination is made in this regard, no lawsuit can be filed.
I n other words, if one of the deceased spouse’s heirs continues the lawsuit during the divorce proceedings, the fault of the other spouse will be determined, and as a result of such a determination, it will be determined whether they are a legal heir according to the legal regulation mentioned above.
In a lawsuit filed to request the issuance of an inheritance certificate, it is certain that the legal heirs and their inheritance shares will be determined by taking this determination into account. I n addition, pursuant to Article 510/1 of the Turkish Civil Code, exclusion from inheritance can only be done by a disposition dependent on death.
There is no disposition upon death by which the plaintiff disinherited the defendant. In this case, since the conditions for disinheritance do not exist, it is clear that the relevant legal provision (TMK m. 510) cannot be applied in the concrete case. In the specific case, the heirs of the spouse who died during the divorce proceedings claim that the other spouse was at fault in the divorce and request that they be disinherited. However, the heir did not make a disposition upon death to disinherit them.
The Court of Cassation, however, requested that a decision to exclude the spouse from inheritance cannot be made if the determination of the spouse at fault in the divorce is requested with a valid reason, that if the spouse is already at fault, they cannot be an heir according to the Law, and therefore, a decision that they cannot be an heir should be made. In this case, there is no possibility of making a decision.
Protection of the Hidden Share in the Event of Failure to Prove the Reason for Disinheritance
In its decision dated February 22, 2018, numbered 2017/17228E-2018/1512K, the 3rd Civil Chamber of the Court of Cassation stated, “In the case, although it is understood that the cause of loss is stated in the will dated July 14, 2009, the evidence shows that the grounds for revocation required by law have not been met. Similarly, the plaintiff has failed to prove the grounds for revocation with respect to the will, except for disinheritance. If the existence of the cause cannot be proven or if the cause for exclusion is not specified in the disposition, the disposition shall be executed except for the heir’s reserved share; however, if the testator made this disposition due to a clear error regarding the cause for exclusion, the exclusion shall be invalid.
” Since the defendants failed to prove the reason for disinheritance, disinheritance must be valid in proportion to the testator’s capacity to dispose of property, in accordance with Article 512/3 of the Turkish Civil Code. In other words, for it to be valid within the limits of the testamentary capacity, it is not considered correct to render a written decision without taking into account the invalidity of part of the will and the plaintiff’s reserved share, and it has been ruled that the case will continue as a reduction action.
In this decision, the Court of Cassation stated that if the reasons cited for disinheritance cannot be proven by the defendants, the reserved share of the disinherited heir shall be protected, but if there is a disposition over it, that disposition shall be valid. To illustrate this point with an example: if the deceased has two children and disinherits one of them, the reserved share of the child who inherits is ¼, so the reserved share of the other child who is not disinherited is ¼.
When ¾ of the inheritance is accumulated by setting aside a monthly allowance, the excluded child receives ¼ of the inheritance, and the ½ accumulation remains valid.
Acceptance of the Action for Cancellation of Exclusion by Other Heirs Not Excluded from Inheritance
In its decision dated February 28, 2019, numbered 2017/14122E-2019/1702K, the 3rd Civil Chamber of the Court of Cassation stated, “The heir has indicated the reasons for exclusion from inheritance in the will. Despite the existence of grounds for disinheritance in the case at hand, the defendants … and … accepted the case. In this case, pursuant to Article 512/3 of the Turkish Civil Code, it is considered incorrect to reject the claim in its entirety without taking into account that the disinheritance shall be valid in proportion to the testator’s disposal capacity, in other words, that the plaintiff may claim from the defendants who accepted their reserved shares.
In this case, since acceptance is a procedure that terminates the lawsuit and can be made at any stage of the proceedings, the judgment must be overturned in order for a decision to be made by some of the defendants regarding the acceptance of the lawsuit.Defense counsel.
Upon review of the decision, it is seen that the decedent properly demonstrated the reason for the exclusion within the framework of dispositions upon death, and that the local court ruled that the exclusion was valid, even though the beneficiaries of the exclusion accepted the case in the action for annulment of the exclusion. Since the declaration of acceptance has legal consequences similar to a final judgment and annulment can only be requested in cases of loss of will, the local court should have decided to annul the exclusion. Since the burden of proof in the case for annulment of the exclusion lies with the defendants, if the defendants cannot prove the reason for exclusion or if they accept the case, there can no longer be any question of a valid exclusion.