TC
SUPREME
Court of Appeals
CASE NO. 2015/16925
DECISION NO. 2016/8339
DATE OF DECISION 12.10.2016
COURT OF FIRST INSTANCE: Court of First Instance
The petition filed by the plaintiff against the defendants with their lawyer on 06.08.2013 was dismissed in absentia; at the end of the hearing, it was decided to accept the Date of Inheritance upon request; the defendant’s acceptance of the lawsuit… the defendant… Following the review by the Deputy Chief Prosecutor and the ruling issued on 19.03.2015, it was decided to resolve the case once again by reviewing all the documents in the file within the time requested in the appeal petition:
decision
The case concerns the determination that the shipyard is insolvent pursuant to Article 605/2 of the Turkish Civil Code and the request for the rejection of the inheritance ruling.
The plaintiff’s attorney, the plaintiff’s brother… ‘s debts, with the execution proceedings being carried out in accordance with the procedure, the deceased’s total debt of TL 130,000.00, excluding interest, and the debt of TL 200,000.00 related to the operation of the business, with the request for the loss of inheritance, requested that a decision be made by rejecting the debt; However, during the trial, the defendant claimed that the cooperative had submitted a report waiving prosecution due to the plaintiff’s closure.
In response to the statement of claim, the defendant argued that the case should be dismissed on the grounds of hostility because the debt had been paid by the cooperative.
The defendant argued that the case should be dismissed.
The court decided to accept the case, and the defendant’s attorneys appealed the decision.
If the testator’s financial difficulties were clearly defined or officially determined at the time of death, the inheritance is deemed to have been rejected. (TMK m. 605/2) Heirs may always request the determination of the person who left the inheritance without payment, unless there is a written violation, i.e., unless they tacitly accepted the inheritance, in accordance with Article 610 of the TMK. The period specified in Article 606 of the TMK does not apply in this case. The lawsuit is filed against the creditors.
If the inheritance is rejected, it is necessary to determine whether the inheritance is indebted. If the employee’s liabilities exceed their assets, this indicates that the employee is unable to pay and is therefore indebted. The testator’s inability to pay is determined by the date of death.
As of the date of death, all assets of the deceased constitute their estate, and all debts constitute their liabilities. For this purpose, it is necessary to fully investigate all assets of the deceased, fully determine their debts, and consequently determine whether the estate is indebted. In this case, the competent court is the court where the creditors reside at the time the lawsuit is filed. Furthermore, pursuant to Article 39/2 of the law on the application of the provisions of the Turkish Civil Code on guardianship, trusteeship, and inheritance, a power of attorney must also be included in the power of attorney for the renunciation of inheritance.
As a concrete example in line with the principles explained, the defendant cooperative argued that the case should be dismissed by the court on the grounds that the debt had been paid. In this case, the court must investigate whether the heirs made any payments to the defendant cooperative and whether the tailor owned the property, in accordance with Article 610 of the Turkish Civil Code. It is incorrect to reach a conclusion by disregarding the aforementioned issue.
Furthermore, Article 312/1 of the Code of Civil Procedure stipulates that a party who waives or accepts a claim shall be liable for the costs of the proceedings as if the judgment had been rendered against them. Although the plaintiff’s attorney stated that he waived the lawsuit against the defendant cooperative, it is unfair to hold the defendant cooperative liable for the litigation costs and attorney’s fees.
On the other hand, the request to determine whether the estate was indebted at the time of the heir’s death is not a type of lawsuit based on the principle that “heirs legally acquire the entire estate upon the testator’s death”;
this leads to the estate being deemed legally rejected without the need for the heirs to declare the will (TMK m. 599/1). This is a type of lawsuit that aims to determine a legal situation that is an exception to the legal rule. Due to this nature, the injured party is obliged to pay. The injured party’s attorney’s fees are also determined based on whether the application is accepted or not. (HMK Article 326) Although the court should collect the injured party’s fees, it is not correct to rule on relative fees.
Furthermore, the court agreed that the power of attorney granted to the defendant’s attorney did not include special powers to renounce the inheritance. After examining the deficiency, without focusing on other deficiencies, it was considered incorrect to issue a written decision requiring the plaintiff’s attorney to submit a power of attorney containing special powers and to remedy this deficiency without granting a period of time; for these reasons, the relevant provision was revoked.
CONCLUSION:
For the reasons stated above, on October 12, 2016, it was unanimously decided to accept the objections of the defendant’s attorneys and to overturn the ruling, to refund the previously deposited amount to the depositors upon request, and to allow 15 days from the date of notification of the decision to appeal the decision.