Considering the social, economic, and family ties between the deceased and their relatives, the exclusion of a claim from being considered a crime is subject to strict conditions. As a rule, the deceased cannot dispose of the reserved shares of the spouse and children, who are reserved heirs. In other words, if there are no conditions for the return of the inheritance, the hidden heirs receive their hidden shares even if the testator does not want them to. The testator may dispose of the remaining portion, excluding the hidden shares, as he or she wishes. T he ratio of the heirs’ hidden shares is specified in Article 506 of the Turkish Civil Code.
The heir deprives the hidden heirs of their hidden shares by removing them from the inheritance or evading the inheritance. T he hidden share of the heir removed from the inheritance cannot benefit from inheritance rights such as filing a reduction lawsuit, receiving a share of the inheritance, or filing a lawsuit.
The institution of inheritance recovery only applies to hidden heirs. This situation arises from the fact that the testator has the ability to deprive legal or testamentary heirs who do not receive a hidden share of the inheritance of their rights at their own free will. However, it should not be forgotten that the situation of persons appointed as heirs by an inheritance contract is similar to that of hidden heirs. The fact is that the testator cannot unilaterally withdraw from the inheritance contract. In this case, if the necessary conditions for exclusion from the inheritance exist, the testator can unilaterally withdraw the person from the inheritance contract and exclude them from the inheritance by returning to the will, which is a disposition upon death.
According to Article 510 of the Turkish Medical Association Law, disinheritance must be done through a disposition upon death. By disposition upon death, we mean a will or inheritance contract. Disinheritance is only possible in the testator’s will. As stated, disinheritance can only be carried out in accordance with Articles 510 and 513 of the law. It is possible if the circumstances listed in the articles exist. These reasons are considered restrictive. In other words, disinheritance cannot be carried out based on any reason other than these reasons.
Types of Disinheritance
Disinheritance is divided into two types: criminal disinheritance and protective disinheritance.
1. Criminal Disinheritance
According to Article 510 of the Civil Code, for an heir to disinherit a reserved heir, the conditions necessary for disinheritance must be met. Disinheritance may occur in two situations. In this context, the conditions for disinheritance are as follows:
-For a registered heir to be disinherited, the heir must have committed a serious crime against the testator or their relatives.
A serious crime is assessed subjectively from a family and social perspective, rather than according to criminal law provisions. The crime of slander, which is particularly common in practice, is a typical example of this. To be disinherited on the basis of such an act, the perpetrator does not need to be convicted for the act they committed.
The statute of limitations due to investigation, pardon, etc., does not prevent the inheritance from being lost. For a serious crime to be grounds for exclusion from inheritance, it must be unlawful. In other words, even if acts committed for reasons such as legitimate defense or insistence cause harm, they cannot be grounds for exclusion from inheritance because they are lawful.
As stated in the law, it does not change the outcome if the act is committed directly against the testator or their relatives. Of course, it is important who is included in the concept of relatives. Relatives are people who rejoice in the bride’s joy and grieve in her sorrow.
Another reason is that the hidden heir has failed to fulfill their obligations arising from family law towards the testator or their family to a significant extent.
In this context, it is considered that children do not care for their disabled parents, siblings act contrary to their alimony obligations, and spouses act contrary to their obligations of fidelity and assistance towards each other.
1.2. Consequences of Criminal Disinheritance
According to Article 511 of the Turkish Civil Code, a person who is disinherited cannot receive a full share and cannot file a reduction lawsuit. If the person who is disinherited from inheritance has no descendants, the heir can dispose of the hidden share of the person who is disinherited from inheritance at any time. However, if the disinherited heir has descendants, the reserved share is transferred to the descendants. In this case, the heir has no freedom to dispose of the inheritance.
1.3. Cancellation of Criminal Proceedings
Disinheritance may be revoked if it is carried out in violation of the formal requirements established by law or if the heir lacks legal capacity. Furthermore, if the testator made a clear mistake regarding the reason for disinheritance, the disinheritance may be annulled. In this context, cases where an heir is disinherited due to a clear mistake are examples; for instance, someone who beats another person but cannot see their face may assume they are their son/daughter/spouse, or believe that the source of a slanderous accusation is their son/daughter/spouse.
With the revocation decision, the heir receives their share of the inheritance as if they had never been disinherited. From this perspective, the revocation decision affects the past. In this case, the heir receives their share of the inheritance, not their reserved share. Only the person who filed the case can initiate a lawsuit for the revocation of inheritance reduction decisions. The heirs of the disinherited person do not have the right to file a revocation lawsuit.
1.3.2. Reduction Action
If the reason for the heir’s exclusion from the inheritance is not stated in the will or if the stated reason does not allow for exclusion, the heir may request the cancellation of their reserved share. In other words, in this case, the heir only receives their reserved share.
2. Loss of Inheritance Rights Due to Inability to Pay Debts
Certain conditions must be met for this institution, defined as protective waste due to inability to pay debts or certain conditions, to be applicable. These conditions are:
-The heir deprived of inheritance rights must have a child from a lower class.
Therefore, for an heir to be excluded from inheritance, they must have descendants under inheritance law. The primary purpose of protective exclusion is to protect the economic future of the heir’s child. The concept of descendants includes children, grandchildren, great-grandchildren, and so on, covering the continuation of the family line within or outside of marriage. In this case, the heir loses half of their reserved share.
-The heir must be unable to pay their debts.
In other words, the heir must be unable to pay their debts, and an insolvency certificate must be issued for the heir in accordance with the Enforcement and Bankruptcy Law. In other words, only if such a certificate exists can the heir be deprived of half of their reserved share. Similarly, the reason why the heir is unable to pay their debts is irrelevant. Whether this reason stems from the heir’s wastefulness or the bankruptcy of a commercial enterprise, if a certificate of insolvency has been issued for the heir, this legal option can be applied.
-Protective exclusion is carried out in favor of children born or about to be born to the descendants.
-With protective reduction, half of the heir’s reserved share is allocated to the heir’s children who are born or about to be born.
-Protective removal must be done by will or inheritance contract.
2.1. Cancellation of Protective Removal (Removal)
According to Article 513 of the Turkish Civil Code, if the judgment of insolvency has expired when the inheritance is opened, or if the debt in the judgment of insolvency does not exceed half of the heir’s inheritance share, the reduction provision is canceled.
Another important point to note is the forgiveness of the heir. If the decedent has recovered their savings after being disinherited, they cannot subsequently disinherit the heir for this reason, even if the conditions necessary for disinheritance are present.
Liability Arising from Delays
An heir who has been disinherited (removed from inheritance) will not be able to benefit from the rights and interests provided by the status of heir and will not be liable for any obligations imposed by the status of heir. In this context, the disinherited heir will not be liable for the debts of the land registry. The provisions taken for the heir’s share of the inheritance are open to criticism.