How to Prepare a Will? Validity Requirements, Types, and Legal Consequences

Determining to whom and under what conditions a person's assets will be left after their death is one of the most important issues in inheritance law. A person can make arrangements regarding their assets after death, within the limits permitted by law. One of the best-known ways to do this a will .

However, a will should not be considered merely a matter of writing "I leave my house to this person when I die" on a piece of paper. The Turkish Civil Code meticulously regulates the various forms in which a will can be made and the requirements that must be met for each form. Failure to comply with the formal requirements may lead to the validity of the will being questioned and may become the subject of an annulment lawsuit in the future.

What is a will?

A will is a legal act made upon death, intended to take effect after the person's passing.

According to the Turkish Civil Code, a will can be made in three ways:

• Formal will
• Handwritten will
• Oral will

These three types are regulated separately in the law. Oral wills, however, are an exceptional method that can only be used in extraordinary circumstances specified in the law.

1. How to Make a Formal Will?

A formal will in the presence of a public official and two witnesses . The public official may be a magistrate, a notary public, or another legally authorized official.

The testator informs the official of their wishes. The official writes or has the will written. The will is then read and signed by the testator. The official also signs it and adds the date.

Then, in the presence of two witnesses, the testator reads the will, declaring that it contains his or her last wishes. The witnesses also make the necessary statements and sign.

If a person is unable to read or sign a will, the law provides for a specific procedure. In this case, the will is read aloud by an official in the presence of two witnesses, and the testator declares that it contains their final wishes.

Who cannot be a witness?

The law prohibits certain individuals from participating in the preparation of an official will as either an official or a witness.

For example;

• Those who lack legal capacity,
• Those banned from public service,
• Those who are illiterate,
• The deceased's spouse,
• Ascendants and descendants by blood,
• His brothers and their wives

A person cannot participate in the preparation of a formal will as a witness or official. Furthermore, the law imposes limitations on the bequests made to specific individuals through a will.

One of the important advantages of a formal will is that the original is kept by the official who prepared it.

2. How to Prepare a Handwritten Will?

Although handwritten wills appear simpler in form, to very strict conditions .

According to Article 538 of the Turkish Civil Code, a will is;

1. It must be written entirely in the testator's own handwriting, from beginning to end
2. The year, month, and day must be specified
3. It must be signed by the testator.

It is particularly important that all of these conditions are met.

Therefore, a document prepared on a computer, printed out, and signed does not meet the legal formal requirements of a handwritten will.

Similarly, a document dictated to someone else or merely signed should not be considered a valid "handwritten will.".

A handwritten will may be deposited with a notary, a magistrate, or an authorized official for safekeeping.

An important application recommendation

When preparing a handwritten will, instead of using vague statements such as "I leave my house to X," it is important to clearly define the assets and beneficiaries as precisely as possible, ensuring that the testator's intentions are clearly understood.

For example, detailed information about the property, a specific bank account if applicable, or the nature of the property to be left behind should be clearly stated.

3. What is an Oral Will?

An oral will is not a method that would normally be used.

If the testator is unable to make a formal or handwritten will due to extraordinary circumstances such as imminent death, disruption of transportation, illness, or war, an oral will may be used

The testator tells two witnesses their last wishes and tasks them with writing or having a will written in accordance with their statements.

These statements must then be put in writing and submitted to the court in accordance with the procedure specified by law.

Therefore, a simple verbal statement such as, "In the presence of two people, I leave my inheritance to this person," should not be considered a valid will on its own.

4. Can all assets be left to a specific person through a will?

The concept of reserved share is of great importance here .

The fact that a person has drawn up a will does not mean that it eliminates the legal rights of all heirs.

The law protects a specific portion of the inheritance shares of certain heirs as reserved shares

Therefore, when making testamentary dispositions regarding one's assets, one must take into account the provisions regarding reserved shares.

For example, if the deceased has descendants, special provisions apply regarding the descendants' reserved share rights.

Therefore:

"In my will, I leave all my property to person X; my children cannot inherit anything."

Such an approach is not legally valid in all cases.

The content of the will and whether the reserved shares have been violated should also be evaluated.

5. What happens if the Reserved Share is Violated?

Even if a will is valid, if the testator's dispositions infringe upon their reserved shares, heirs entitled to reserved shares have the right to request a reduction of .

Reduction is the reduction of testamentary or certain inter vivos dispositions that infringe upon the reserved share, to the extent prescribed by law.

Therefore, the two concepts must be distinguished from each other:

Invalidation of a will: This comes into play if there are reasons for the will to be deemed invalid.

Reduction of the reserved share: This may arise even if the will is valid, if the reserved share is violated.

This distinction is quite important in inheritance disputes.

6. Under what circumstances can a will be revoked?

A will drawn up in violation of the law does not always produce the same legal result. Factors such as failure to comply with the formal requirements of the will, or impairment of the testator's legal capacity or will, are particularly important.

For example;

• Failure to prepare the will in accordance with legal requirements,
• The testator's lack of legal capacity to make a will,
• Impairment of free will due to reasons such as error, deception, or intimidation,
• The content is contrary to mandatory provisions of the law or to legal principles

Such situations may arise regarding the annulment of a will, depending on the specific circumstances of the case.

Supreme Court rulings also show that the formal requirements of wills are important and that the entire process of drafting the will should be evaluated in the specific case.

7. What Should Be Considered When Preparing a Will?

The most important issue when preparing a will is to ensure that the testator's true intentions are legally valid and expressed as clearly as possible.

Particular attention should be paid to the following points:

Clearly list your assets.
If you are leaving behind real estate, a vehicle, a bank account, or any other property, it should be described as clearly as possible.

Clearly state the beneficiaries.
It should be clear to whom each property or right is bequeathed.

Do not neglect the date and signature requirements.
The date and signature are especially mandatory in handwritten wills.

Consider the reserved shares.
The ability to leave property to whomever you wish through a will does not, in all cases, negate the rights of heirs entitled to a reserved share.

Exercise caution when creating multiple documents.
Subsequent documents may affect all or part of a previous will. Therefore, it is important that the relationship between the old and new documents is clear if the will needs to be updated.

Ensure the document is kept securely.
Failure to locate the will after death could lead to disputes over its contents or prevent heirs from accessing it.

8. Can a Will Be Changed at Any Time?

As a general rule, a person can change or revoke testamentary dispositions made during their lifetime, as long as they possess the necessary legal capacity.

Since life circumstances, assets, or family relationships can change over time, it is important to determine whether a will drawn up many years ago reflects one's current wishes.

If a new will is prepared, the extent to which the previous will remains valid should also be evaluated.

Therefore, it can be beneficial to revise a will, especially after significant changes such as the sale of real estate, the acquisition of new property, marriage, divorce, or the birth of children.

9. What Happens to a Will After Death?

When a will is discovered after the testator's death, it must be submitted to the relevant authorities.

According to the Turkish Civil Code, a will, regardless of its validity, must be opened and read to the interested parties by the magistrate of the testator's place of residence within one month of its delivery

At this stage, opening the will and definitively determining its validity are not the same thing.

The opening of a will is the process of duly presenting the document and notifying the relevant parties.

If the validity of the will is challenged, further legal avenues may be pursued.

10. Can a Will Be Objected To?

Yes.

Heirs or persons with a legal interest who believe that the will is invalid may pursue legal avenues such as annulment or reduction of the will , depending on the specific circumstances

Timeliness is extremely important here.

Since there are time limits stipulated in the law for lawsuits to invalidate a will, these time limits must be evaluated separately after the will is opened and served to the relevant parties.

Therefore, if an heir believes there is a problem with the will, they should not act on the assumption of "I'll file a lawsuit later anyway"; they should not delay the legal process by taking into account the dates of notification and learning about the will.

Conclusion

A will is an important legal instrument that allows a person to express their wishes regarding how their assets will be distributed after their death. However, for a will to be valid, it is not enough for the person to simply put their wishes in writing.

Depending on the type of will, it must comply with the formal requirements stipulated by law.

While a formal will requires the presence of a public official and two witnesses, a handwritten will must be written entirely in the testator's own handwriting, dated, and signed. An oral will, on the other hand, can only be used in extraordinary circumstances specified by law.

 

Related article: Rights of heirs in an inherited house.