10 Questions About Frequently Asked Questions Regarding Asset Concealment in Inheritance Distribution

The decision regarding the heir whose inheritance share was usurped was given in the Supreme Court's unification of jurisprudence decision dated April 1, 1974. The concluding part of the said decision is as follows:

"If it is established that a person, with the intention of depriving an heir of their inheritance rights, declares their intention to sell a registered immovable property before the land registry officer, when in reality they intend to donate it, all heirs whose inheritance rights have been violated, whether or not they are entitled to a reserved share, may file a lawsuit claiming that the apparent sales contract is fraudulent based on Article 18 of the Code of Obligations and that the hidden donation contract lacks the formal requirements. This right to sue shall not affect the rights granted by Articles 507 and 603 of the Civil Code, which apply to valid contracts. This decision was made by a majority vote at the second meeting of the Grand General Assembly for Unification of Jurisprudence of the Supreme Court of Appeals on April 1, 1974."

In cases involving fraudulent transfers of inheritance, individuals should consult experienced Inheritance Law Attorneys to ensure a favorable outcome for them

1- Is it possible to prove fraudulent transactions by the deceased?

"transfer of property by the deceased" refers to the act of a deceased person, before their death, transferring a specific immovable property to one of their prospective heirs, or even to a third party who is not an heir, by registering a sale in the land registry and doing so without consideration.

The proof of fraudulent transfer by the deceased is a crucial aspect of the case. The condition here is that if one of the parties to the contract alleges fraud, this allegation must be proven with written evidence. If the individual who transferred the property through fraudulent transfer dies, and the heirs file a lawsuit based on the deceased's rights, the rule of written proof will also apply. However, if the heirs file the lawsuit on their own behalf and not on behalf of the deceased, then they will have the opportunity to prove the fraud with any kind of evidence.

In proving fraudulent transactions by the deceased, the deceased's true intention is of paramount importance. Therefore, the Supreme Court has established certain criteria for determining the deceased's true intention. One of these is the economic situation of both the deceased and the individual they are inheriting from. Family relationships are also a significant factor in determining the deceased's true intention. The difference between the sale price and the actual price is known as one of the most effective techniques for demonstrating the deceased's intention. On the other hand, whether the deceased had a legitimate reason for entering into the contract and the customs and traditions of the region are also among the criteria used by the Supreme Court in determining fraudulent transactions by the deceased. However, there are also some situations considered according to the specific circumstances of the case. For example, a father or mother selling real estate to one of their heirs, or a father transferring real estate to a child from a previous marriage, is also considered fraudulent transactions by the deceased.

 

2. What legal avenues can an heir whose inheritance rights have been usurped pursue?

X: A widowed mother with two children and a property

Y: First child

Z: Second child

What turned the situation into a fraudulent inheritance scheme: The mother's desire to leave her assets to Y

Process: X transfers the property to Y, registering the transaction as a sale at the land registry office. X, intending to donate the property to Y, disinherited Z; the transfer to Y is recorded as a sale without any payment. Years later, upon X's death, Z can file a lawsuit against his brother Y, seeking the cancellation and re-registration of the title deed due to fraudulent transfer by the deceased.

 

3. In cases of fraudulent transactions by the deceased, what is the competent court and where should the lawsuit be filed?

In cases of fraudulent transfer of property by the deceased, the competent court is the civil court of first instance. The lawsuit is filed in the court located where the real estate is situated. If there are multiple properties located in different places, the lawsuit can also be filed in the court located in the place where one of them is situated.

 

4. What is the progress of the lawsuit filed by the aggrieved heir requesting the cancellation and registration of the title deed?

Z's request: To have the property, which X fraudulently transferred to Y before X's death, registered in Z's name in the land registry in proportion to his legal inheritance share.

If Z wins the case: The ownership of the property will be registered as 1/2 to Y and 1/2 to Z, with the share transferred from X, and the title deed registered in Y's name will be cancelled.

 

5. What happens if Z or Y's mothers die before X?

In the event of Z's death: Z's legal heirs may file the same lawsuit against Y, provided that Z did not waive their right to sue while alive.

If Y dies: Z may file the lawsuit against Y's spouse and/or children, if any.

 

6. What happens if Y and Z die before their mother, X?

Z's spouse and/or children, if any, may file the same lawsuit against Y's legal heirs, provided that Z did not waive their right to sue during their lifetime.

 

7- If Y, anticipating that Z will file a lawsuit following the death of X's mother, transfers the property to his friend D free of charge/fraudulently, what can Z do?

By suing Z, Y, and D in the same case, Z can secure the registration of the property in his/her name at a rate of 1/2, which is his/her inheritance share.

 

8- If Y sells the property to a bona fide third party, Ü, for consideration before his brother Z files a lawsuit, what can Z do?

According to Article 1023 of the Civil Code, Ü's acquisition in good faith is protected. Therefore, instead of suing Ü, who has a very low chance of winning, Z will sue Y. Ultimately, the amount of monetary compensation Z will claim in this lawsuit will be equal to the value of Y's 1/2 share in the property that Y sold.

 

9- Is there a statute of limitations in the inheritance lawsuit that Z will file? What is the earliest date she can file the lawsuit? 

Provided X dies, Z always has the right to file a lawsuit, regardless of when the fraudulent transaction occurred. Z can file the lawsuit upon the death of X's mother, X. A lawsuit filed against X, Y, or both before X's death will be dismissed.

 

10- Is there anything Z should pay attention to when filing the lawsuit?

During the legal process, Y should request a "precautionary measure" from the court to prevent the transfer of the property to someone else. Ultimately, Y will not be able to "abduct" the property in question.