The Process of Opening (Reading) a Will
Entrance
The Turkish Civil Code grants individuals the right to dispose of their assets after death. The most important manifestation of this right is the drafting of a will . However, the process of opening (reading) the will after death is just as important as the drafting of the will itself. This is because, without opening the will, its contents cannot be known, heirs cannot claim rights, and the dispositions cannot be enforced.
This article will comprehensively examine the process of opening a will , its legal basis , practical procedures , the roles of the court and notary , the rights of heirs , objection and annulment proceedings , and relevant Supreme Court rulings
1. The Legal Nature of a Will
A will is a unilateral disposition dependent on death. It is based on the will of the testator and takes effect upon death. Articles 531-544 of the Turkish Civil Code (TMK) regulate the types of wills and their validity conditions in detail.
A will can be made in three ways:
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Official will (Turkish Civil Code Articles 532–534)
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Handwritten will (Turkish Civil Code Article 535)
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Oral will (Turkish Civil Code Articles 539–541)
Regardless of the form a will takes, it must follow certain rules to be valid. These rules are also checked during the process of opening (reading) the will
2. What is the Opening of a Will?
The opening of a will is the process by which, after the death of the testator, the will is retrieved from its storage and formally read by an authorized authority . This process marks the beginning of the verification of the will's validity and the notification process to the heirs.
2.1. Legal Basis
According to Article 595 of the Turkish Civil Code:
"A will is opened by a magistrate after the death of the testator and read to the interested parties."
This provision governs the process of declassifying a will and formally serving it. Furthermore, the Notarial Law and Notarial Regulations also define the procedure for opening a will kept in the custody of a notary.
3. Authority Responsible for Opening the Will
The authority to open a will may vary depending on the type of will:
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Will drawn up by a notary: Upon learning of the death certificate, the notary sends the will to the Civil Court of Peace (Notary Law, Article 79).
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Handwritten or oral will: The person holding the will (e.g., a relative, lawyer, bank) is obligated to deliver it to the Civil Court of Peace (Turkish Civil Code, Article 595/1).
The competent court is the civil court of the last place of residence of the deceased.
4. The Process Leading Up to the Opening of the Will
4.1. Obligation to Deliver the Will
If a will is in someone's possession after the testator's death, that person must not conceal, destroy, or hide the will. Any such action criminal liability (it may be considered the crime of concealing or destroying evidence under Article 281 of the Turkish Penal Code).
If it is not delivered, the heirs a lawsuit for delivery .
4.2. Determination by a Notary Public or Court
When the notary learns of the death, they obtain confirmation via MERNIS (National Identity Registration System) and send the envelope containing the will to the court.
The magistrate, after reviewing the death certificate, decides whether the will should be opened.
5. Opening (Reading) the Will Stage
5.1. Opening Procedure
The magistrate receives the sealed envelope containing the will. The opening process is not conducted in a court hearing, but recorded in a protocol before the court .
This process takes place in the following steps:
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The envelope containing the will is opened, and the date and location are recorded in the minutes.
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The original will is read .
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The contents are recorded and sealed by the court.
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The interested parties (heirs, designated heirs, legatees) are identified.
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of the will is served to the relevant parties.
This process is called "reading the will".
5.2. Preparation of Minutes
The court prepares an official record of the opening and reading of the will . This record serves as primary evidence in resolving any future disputes.
6. Procedures to Follow After Opening the Will
6.1. Notification to Relevant Parties
The contents of the will become official upon its opening. The court sends notifications.
At this stage, the parties can either accept the validity or file a lawsuit for its annulment.
6.2. Right to File a Lawsuit for Annulment and Reduction
After the will is opened, the heirs can file the following lawsuits:
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Action for the annulment of a will (Turkish Civil Code Article 557)
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Reduction lawsuit (Turkish Civil Code Articles 560–564)
An annulment lawsuit claims that the will is invalid due to reasons such as incapacity, defective will, or formal deficiencies ; while a reduction lawsuit is filed in case of violation of reserved shares
7. The Importance of Opening a Will
Opening a will is not merely a technical process; it has numerous legal consequences
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The inheritance sharing process begins
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Issuance of inheritance certificate
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The right of claim arises for the legatee
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Enabling transfer of ownership at land registry offices, banks, and other institutions
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Commencement of the obligation to report to the tax office
Therefore, failure to open or delaying the opening of the will may lead to the loss of rights for the heirs.
8. Common Problems Encountered in Practice
8.1. Concealment of the Will
Sometimes, the person holding a will may withhold the document on the grounds that it is against their interests. In this case, criminal penalties and liability for damages may arise.
8.2. Multiple Wills
If the testator has prepared more than one will, the most recent one is valid. However, unless the revocation of a previous will is explicitly stated, both documents may be considered together.
8.3. Wills Drawn Up in a Foreign Country
Wills made abroad do not require recognition and enforcement in Turkey ; however, their validity is assessed in terms of form according to the laws of the country where they were made, in accordance with Article 8 of the Private International Law Act and Article 547 of the Turkish Civil Code. The opening of such wills is also carried out by the Turkish Civil Court
9. The Role of the Lawyer in Opening a Will
The lawyer manages the process in representing the deceased or the heirs. Specifically:
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Monitoring the process of delivering and opening the will
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Serving notices to the heirs
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Filing lawsuits for the annulment or reduction of a will
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Protecting interests in the distribution of inheritance
Legal support is of great importance, especially in families with multiple nationalities or in cases involving high-value real estate.
10. Examples from Supreme Court Decisions
Court of Cassation, 3rd Civil Chamber, Case No. 2017/1065 E., Decision No. 2019/4829 K.
“The opening of a will is an administrative process carried out in the absence of the parties. Therefore, the opening process alone cannot be annulled; however, lawsuits can be filed regarding the contents of the will.”
Supreme Court 14th Civil Chamber, Case No. 2016/2711 E., Decision No. 2018/4107 K.
“The opening of a will ensures the determination of the heirs after the death of the testator. Concealing the will or delaying its opening does not initiate the time limit for heirs to file a reduction of the inheritance share.”
These precedents emphasize that the mere opening of a will does not produce any legal effect; the real effect is revealed during the reading and notification phase
11. Distribution of Inheritance After Opening the Will
After the will is read, the process of distributing the inheritance among the heirs begins. If specific assets are bequeathed to certain individuals in the will, these are considered legatees. Heirs can apply to the court to carry out transactions such as the transfer of property deeds , the transfer of bank accounts , and the transfer of company shares .
12. Tax and Reporting Obligations
Heirs are required to file an inheritance tax return for assets transferred through a will . The deadline for filing the return with the tax office is generally four months . This period begins the day following the date the will is opened.
13. International Dimension
For foreign heirs or foreigners owning immovable property in Turkey, the opening of a will is significant under international private law . If the testator is a Turkish citizen, Turkish law applies; if the testator is a foreigner, lex domicilii (law of residence) applies. However, for immovable properties located in Turkey, Turkish law applies absolutely (Article 20 of the Turkish Private International Law Act).
14. Frequently Asked Questions (FAQ) Regarding Opening a Will
1. Who opens the will?
The magistrate opens it. The notary only delivers the envelope to the court.
2. Does an heir need to apply for the will to be opened?
No, the judge can open it ex officio upon receipt of the death certificate; however, heirs can also apply.
3. Can inheritance be divided before the will is opened?
No. It's impossible to know how the inheritance will be distributed before the will is opened.
4. What happens if a will is concealed?
The person who conceals it will be held criminally liable and liable for damages.
5. What is the time limit for filing a lawsuit after the will has been read?
The time limit for filing an annulment lawsuit is one year, and in any case, ten years(Turkish Civil Code, Article 559).
15. Conclusion and Evaluation
The process of opening a will is the most critical stage in carrying out the testator's wishes. During this process:
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Delivery of the will,
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Initiated by the civil court of peace,
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For reading and notification to those concerned,
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Management of potential cancellation or reduction lawsuits
The process must be carried out meticulously. The most common mistake in practice is delaying the opening of the will or processing it without knowing its contents. However, this can lead to both loss of rights for the heirs and criminal liability.
Therefore, the process of opening the will should be initiated, and legal procedures should be coordinated with the support of a lawyer.
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