Disinheritance

This testamentary disposition, which allows the testator to disinherit reserved heirs, prevents them from receiving their shares.

Disinheritance is a personal testamentary disposition that only affects the heir entitled to a reserved share. In other words, the descendants of the disinherited heir retain their right to inheritance. Thus, the descendants receive the inheritance share of the disinherited heir.

Disinheritance, which is a disposition resulting from a negative death, must be justified. It must clearly state who is being disinherited and for what reason. Corrections regarding the disinherited person cannot be made through interpretation.

Disinheritance is generally done through a will. However, there is no obstacle to doing it through an inheritance agreement. Even if disinheritance is done through an inheritance agreement, the agreement is subject to the provisions of the will. Although the agreement is binding, it can always be revoked by the testator because it is subject to the provisions of the will.

Disinheritance is entirely at the discretion of the testator. Even if the grounds for disinheritance exist, the testator may choose not to disinherit a reserved heir. In other words, a disinheritance act has no legal effect unless it is carried out by the testator's will.

Disinheritance must be based on the reasons listed in Article 510 of the Turkish Civil Code and must be stated in a testamentary disposition. Only under these conditions does disinheritance take effect.

Reasons for Disinheritance

In the following cases, the testator may disinherit a reserved heir through a testamentary disposition:

1. If the heir has committed a serious crime against the testator or one of the testator's close relatives,

The concept of "serious crime" used in this paragraph is not the same as the concept of serious crime as it is in criminal law. The article does not enumerate what constitutes a serious crime; this is left to the discretion of the judge, who will interpret it within the context of specific cases. Based on their assessment, the judge will determine whether disinheritance is justified in a specific case, if such a situation constitutes grounds for disinheritance.

Upon examination of this clause, it becomes clear that the testator may disinherit a reserved heir not only for a serious crime committed against the testator, but also for a serious crime committed against the testator's close relatives. The concept of "deceased's relatives" here should be interpreted broadly. Besides blood relatives, close friends or fiancés are also included within the scope of this clause.

When assessing whether an act constitutes a serious crime, both objective and subjective conditions must be considered. For example, an act committed by an heir might be of a nature that severs family ties. This is an objective condition. However, in this specific case, the act may not have had an effect that severed family ties. In this case, since the subjective condition is not met, there is no ground for disinheritance.

What is important here is not so much whether the act committed in the specific case was serious, but whether it ultimately aimed to sever family ties. In general, physical and verbal violence committed against the testator and their relatives is sufficient grounds for disinheritance.

2. If the heir has significantly failed to fulfill their obligations arising from family law towards the testator or members of the testator's family

Since the obligations in question here arise from family law, the parties concerned are the testator and family members. Furthermore, both objective and subjective conditions must be met for the reason mentioned in this paragraph to be valid.

Examples of obligations arising from family law include fulfilling alimony duties, the mutual respect and assistance between parents and children for the benefit of the family, and the duty of fidelity between spouses. Failure to fulfill these and similar obligations is considered grounds for disinheritance.

Provisions for Disinheritance

Disinheritance is valid only if the testator has specified the reason for disinheritance in their disposition (Turkish Civil Code Article 512/1). As this paragraph indicates, specifying the reason is crucial. This reason must be clearly stated and valid for disinheritance. For example, it will not be sufficient for the testator to simply state that a crime was committed against them in their disposition. The disinheritance will be valid only if the testator shows the reason more concretely. For instance, if the testator states that they were beaten, this reason will be sufficient for disinheritance.

A person disinherited cannot receive a share of the inheritance, nor can they file a claim for reduction of the inheritance (Turkish Civil Code 511/1). In a disinheritance based on a valid reason, the heir entitled to a reserved share loses their status as an heir and therefore cannot receive a share of the inheritance, nor can they file a claim for reduction of the inheritance since they are no longer an heir entitled to a reserved share. This also applies to complete disinheritance. For an heir partially disinherited, only their reserved share will decrease; their status as an heir will remain.

Unless the testator has made a different disposition, the inheritance share of a person disinherited passes to the disinherited person's descendants, if any, or to the testator's legal heirs, as if that person had died before the testator (Turkish Civil Code 511/2).

The descendants of a disinherited person may claim their reserved share as if that person had died before the testator (Turkish Civil Code 511/3).

Considering these two paragraphs, it is understood that the descendants of an heir who has been disinherited will not be affected by this disposition; in other words, the descendants of the disinherited heir will continue to inherit from the testator. In such a case, the share of the heir with descendants will pass to the descendants.

In a situation where the heir has no reserved descendants, the heir's reserved share will pass to the testator. This will expand the testator's disposition limits. However, it should be noted that if the heir dies before the testator, the heir's reserved share does not pass to the testator.

Annulment Case and Reduction Case

If the disinherited person objects, the burden of proof for the existence of the stated reason falls on the heir or legatee benefiting from the disinheritance (Turkish Civil Code 512/2).

If the existence of a reason for exclusion cannot be proven or the reason for exclusion is not stated in the disposition, the disposition is executed except for the heir's reserved share; however, if the testator made this disposition due to a clear mistake regarding the reason for exclusion, the exclusion becomes invalid (Turkish Civil Code 512/2).

A person disinherited has the right to file a lawsuit for annulment. In such a lawsuit, the heir must prove that the testator made a clear mistake. The burden of proving the existence of the reason for disinheritance falls on the heirs who benefit from the inheritance.

An annulment lawsuit can be filed based on general grounds for annulment, or it can be filed on the grounds that a clear error was made in determining the reason for disinheritance.

If the annulment lawsuit results in a ruling of invalidity, and if the reason for invalidity relates to the entire will, then the will will be considered entirely invalid. However, generally, these annulment lawsuits are partial. This means that while the disinheritance is deemed invalid as a result of the annulment lawsuit, the other provisions in the will remain valid.

In a ruling favoring an heir who has been disinherited as a result of an annulment lawsuit, the heir receives their full share.

A person disinherited may also file a lawsuit for reduction of the inheritance share on the grounds that no reason was given or that the reason given was insufficient. In such a case, the burden of proof for the existence of a reason or that this reason is sufficient for the disinheritance falls on the defendant. This is because the defendant is the one who benefits from the inheritance.

A person disinherited from an estate can only receive their reserved share as a result of a reduction of inheritance shares lawsuit.

It is important to reiterate here that the testator can always revoke the disinheritance disposition. The testator may forgive the disinherited heir. In such a case, the disinheritance disposition can be revoked. Since the disinheritance disposition was made through a will, the testator must state, also through a will, that they forgive the disinherited heir and revoke the disinheritance disposition.

Disinheritance due to Insolvency

The testator may disinherit a descendant who has a certificate of insolvency, with respect to half of their reserved share. However, it is a condition that this half be allocated to the disinherited descendant's current and future children (Turkish Civil Code 513/1).

If, at the time the inheritance is opened, the certificate of insolvency is no longer valid or the amount of debt covered by the certificate does not exceed half of the disinherited person's inheritance share, the disinheritance shall be revoked upon the request of the disinherited person (Turkish Civil Code 513/2).

In this case, the person disinherited must necessarily be a descendant of the testator, and their creditors must have obtained a certificate of insolvency against them. If such a situation exists, the testator disinherits the heir in such a way that half of the heir's reserved share is left to their existing or unborn children. However, if the certificate is no longer valid at the time the inheritance is opened, or if the heir's debt is less than half of their reserved share, the heir may request the annulment of the disinheritance through legal action.[1]

[1] Rona SEZORAN, Baki İlkay ENGİN, Inheritance Law, Seçkin Publications, 7th Edition, Ankara, 2021.

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