Reduction of Inheritance Shares in Inheritance Law

The reduction lawsuit is addressed under Article 560 of the Turkish Civil Code . According to this article, a reduction lawsuit is a lawsuit filed by heirs who have not received their reserved shares, requesting the reduction of dispositions made by the testator that exceed the disposable portion of the inheritance. Inter vivos and testamentary dispositions made by the testator may have violated the reserved shares of the heirs, resulting in their inability to receive their reserved shares. Even if these dispositions exceed the disposable portion, they are still valid. Heirs can only request the reduction of these dispositions through a lawsuit. This lawsuit is a reduction lawsuit, and it is a lawsuit that creates a new legal situation. This means that when the lawsuit concludes, some of the dispositions made by the testator will become partially or completely invalid, with retroactive effect from the opening of the inheritance. A reduction lawsuit can only be filed upon the death of the testator. Because the inheritance rights of the heirs, and therefore their reserved shares, do not arise before the death of the testator. In a reduction lawsuit, the aim is not the annulment of the testator's dispositions, but rather a change or reduction of those dispositions to the extent that the reserved shares are harmed. If the testator has fulfilled their dispositions, the defendant can also request performance along with the reduction lawsuit for the return of the property. The request for performance can be made together with the reduction lawsuit, or a separate lawsuit for performance can be filed to demand the return of the property from the defendant.

Parties to the reduction lawsuit

Plaintiff

As a rule, a reduction lawsuit can be filed by heirs who have not received their reserved shares. If the heirs entitled to reserved shares die, their legal heirs can also file a reduction lawsuit as universal successors. It should be noted that the right to file a reduction lawsuit is a personal right and cannot be transferred to another person. Even if an heir entitled to a reserved share transfers their share, the right to file a reduction lawsuit is not transferable.
Heirs entitled to reserved shares may have received their reserved shares through wills, inter vivos transfers, transfers subject to restitution, inter vivos transfers subject to reduction, and testamentary transfers subject to reduction. In this case, they cannot file a reduction lawsuit. These issues should also be taken into consideration when examining whether there has been a violation of reserved shares.
As an exception, the legislator has also granted the right to file a reduction lawsuit to the bankruptcy estate and the creditors of heirs entitled to reserved shares. According to Article 562 of the Turkish Civil Code; If the testator exceeds the portion of the inheritance they are permitted to dispose of, and the heir whose reserved share is affected fails to file a reduction lawsuit despite a warning from the bankruptcy court or creditors holding a certificate of insolvency against the testator at the time of the inheritance, the bankruptcy court or these creditors may file a reduction lawsuit to the extent necessary to recover their claims and within the time granted to the heir.
Similarly, if the disinherited person does not object to the disinheritance disposition, the bankruptcy court or creditors may file a reduction lawsuit under the same conditions.

Defendant

A reduction lawsuit is filed against the person or persons to whom the inter vivos or testamentary dispositions subject to reduction were made. These persons may be a third party, or they may be testamentary or legal heirs. If the recipients have died, the lawsuit is filed against their heirs. If
the dispositions violating the reserved share were made in favor of more than one person, the heir entitled to the reserved share may file the lawsuit against all of them or against some of them. If the lawsuit is filed against one or more of the recipients, it is considered that the heir has waived the right to reduce the dispositions of the persons not named as defendants.

competent and authorized court

The competent and authorized court is the 'civil court of first instance' of the deceased's last place of residence.

Time limit for filing a lawsuit

According to Article 571, paragraph 1 of the Civil Code, the right to file a reduction lawsuit expires one year from the date the heirs learn that their reserved shares have been infringed, and in any case, ten years from the date of the opening of the will in the case of wills, and ten years from the date of the opening of the inheritance in the case of other dispositions. Paragraph 2 of the same article states that if the annulment of a disposition causes a previous one to enter into force, the time limits begin to run from the date the annulment decision becomes final. Paragraph 3 states that the claim of reduction can be raised at any time by way of a defense. The time limits for filing a reduction lawsuit are forfeiture periods and must be considered ex officio by the judge. The defense of reduction can be raised at any time. However, in order to raise the defense of reduction, the heirs entitled to reserved shares must be in possession of the estate. For example; In a claim for entitlement or execution of inheritance proceedings initiated by the recipients of the bequests against the heirs entitled to a reserved share, regardless of the time elapsed since the opening of the inheritance, the heirs entitled to a reserved share may refuse to give the property or its value to the extent that their reserved shares have been harmed, by raising the defense of reduction.

The scope of the defendant's obligation to return

If the reduction lawsuit is decided in favor of the heirs entitled to a reserved share, the bequests made by the testator to the person or persons subject to reduction
will become partially or completely invalid with retroactive effect. In this case, these individuals will have an obligation to return the bequests to the heirs entitled to a reserved share.

According to Article 566 of the Turkish Civil Code, if a person who has received a transfer subject to reduction is acting in good faith, they are only obligated to return what remains in their possession at the time of the inheritance; if they are not acting in good faith, they are liable according to the provisions regarding the obligation of a possessor acting in bad faith to return the transfer. Furthermore, the second paragraph of the same article states that 'a person who has received a transfer through an inheritance contract that is subject to reduction may request the return of the consideration given to the testator in proportion to the reduction.' It is particularly important to note that this provision only applies to transfers made between living persons that are subject to reduction. Therefore, to invoke this provision, there must first be an inter vivos transfer that has been performed.

It's time for layoffs

The decision in a reduction lawsuit contains a constitutive clause stating that the reserved share has been violated, that the portion exceeding the disposition rate should be reduced, and that alters the testator's dispositions. Furthermore, if the heir entitled to a reserved share also requests the return of the reduction
If a decision is made in a reduction lawsuit stating that the reserved share has been violated and that the testator's dispositions should be reduced, the reduction is carried out according to the order specified in Article 570 of the Turkish Civil Code: Reduction is carried out
until the reserved share is completed
: • First, from testamentary dispositions;
• If this is insufficient, from inter vivos dispositions, going backward from the most recent to the oldest.
• Testamentary dispositions and inter vivos dispositions made to public legal entities and public benefit associations and foundations are reduced last.

Supreme Court rulings on the subject

In the case between the parties; the plaintiff alleged that the deceased M. transferred his 1/2 share in parcel number 1448 to the defendant E. through a sale, although it was actually a gift, in order to eliminate the inheritance rights of his daughters. Therefore, the plaintiff requested the cancellation of the title deeds of parcels 2901 to 2906, which were created by subdividing parcel 1448 and registered in the names of the defendants, and their registration in proportion to their inheritance shares, or failing that, a reduction. The defendants argued for the dismissal of the case.
The court ruled that since it could not be proven that the defendants other than Edip were not heirs and were third parties acting in bad faith, the plaintiff's claim for cancellation and registration of the title deed based on fraudulent transfer by the deceased was dismissed, the claim for reduction of the title deed filed against the defendants other than E. was dismissed, and the claim for reduction of the title deed filed against defendant E. was accepted and a reduction was ordered. The decision was appealed in a timely manner by the attorney for defendant Edip; The investigating judge's report was read and his opinion was taken into consideration. The file was examined, and the necessary deliberations and considerations were made. The case concerns requests for cancellation and registration of title deeds, or alternatively, reduction of inheritance shares. The court decided to reject the claim for cancellation and registration of title deeds and to accept the claim for reduction of inheritance shares. From the file contents and the evidence gathered, it is seen that the deceased M. transferred his 659/2400 share in the immovable property numbered 1448 parcel to the defendants, namely Y. (not a party to the lawsuit), through a sale agreement dated 12.2.1986, and Y. also transferred his 659/2400 share to the defendants, namely the deceased's son E. It is understood that parcel 1448 was subsequently subdivided into parcels 2901 and 2906, and that the total share of 1318/2400 acquired by defendant E. from M. and Y. through the aforementioned agreement was allocated to these subdivided parcels. After the full shares of these subdivided parcels were transferred to defendant E. through division from third parties not involved in the lawsuit, they were subsequently transferred to the defendants through sale. The court ruled to dismiss the lawsuit for cancellation and registration of title deeds due to the failure to prove bad faith on the part of defendants other than E., and to accept the lawsuit for reduction of inheritance shares filed against defendant E. The judgment was appealed by defendant E. regarding the reduction of inheritance shares. It cannot be said that the court's decision to reduce the inheritance is correct because it did not adequately determine whether the testator, M., who died on March 16, 1995, and the transfer subject to reduction was made on February 12, 1986, acted with the intention of harming the reserved shares of the heirs entitled to reserved shares, in accordance with Article 507/4 of the Civil Code. On the other hand, it is also incorrect that the court decided to reduce the inheritance based on the value of the entire subdivided parcels, which were transferred to E., including the shares transferred by the testator M. to his son E. through sale (a share not included in the lawsuit), and the shares received from other parties not involved in the lawsuit as a result of the division. 2. Following the reduction of inheritance shares case between the parties, the local court's decision to dismiss the case was appealed by the plaintiffs' attorney within the legal time limit. The file was examined, the report of the Examining Judge… was read, the explanations were heard, and the matter was considered and deliberated upon; -DECISION- The case concerns a claim for reduction of inheritance shares. The court decided to dismiss the case on the grounds that the testator did not make any disposition subject to return or reduction.
From the file contents and the evidence gathered, it is understood that the testator Şerife died on 03/06/2009 and left the plaintiff Selahattin and the defendant Handan as heirs. As is known, inheritance opens upon the death of the testator. (Turkish Civil Code Article 575) Turkish Civil Code Article 571/1. Article 1 of the Turkish Penal Code stipulates that "The right to file a reduction lawsuit expires one year from the date the heirs learn that their reserved shares have been infringed, and in any case, ten years from the date of the opening of the will in the case of wills, and ten years from the date of the opening of the inheritance in the case of other dispositions." This period is a forfeiture period and is taken into account by the judge ex officio at every stage of the proceedings. In the concrete case, considering that the testator died on June 3, 2009, the present lawsuit was filed on July 9, 2010, and the plaintiff claims in the petition that they became aware of the dispositions in question through records and documents that emerged in the last days of June 2010, the court should have conducted the necessary investigation to determine the date of learning and rendered a decision accordingly. The judgment rendered in writing is therefore incorrect. The appeal objections of the plaintiffs' attorney are justified for the reasons stated above. With its acceptance, the judgment is REVERSED in accordance with Article 428 of the Code of Civil Procedure No. 1086 (by reference to Article 3 of the Provisional Law No. 6100), and there is no need to examine the other appeals at this time due to the grounds for reversal; the advance fee paid by the appellant shall be returned. The decision was made unanimously on October 20, 2014.
Rona SEZORAN, Baki İlkay ENGİN, Inheritance Law, Seçkin Publications, 7th Edition, Ankara, 2021

You can consult with Attorney Ferhat Kule to get answers to all the details and questions you may have

Sevgi Esin