Wills under Turkish Law

Table of contents

• What is a will under Turkish law?
• What are the requirements for making a will?
• What forms of wills does Turkish law recognise?
• What can be arranged by way of a will?
• What limits do the reserved share rules impose?
• What is the difference between an annulment action and a reduction action?
• How can a will be revoked or amended?
• What special rules apply to foreign testators?
• What should be considered in practice?

What is a will under Turkish law?

A will is a unilateral and freely revocable disposition upon death by which the testator determines what arrangements shall apply to his or her estate after death. The principal provisions governing wills are set out in Articles 531–544 of the Turkish Civil Code (TCC).

Unlike an inheritance contract, a will is made by the testator’s unilateral declaration of intent. The testator may therefore amend or entirely revoke the will at any time, provided the statutory formal requirements are observed. This flexibility makes the will the most frequently used instrument of estate planning in practice.

However, Turkish law imposes strict formal requirements on the validity of a will. Non-compliance with these requirements may, depending on the circumstances of the individual case, render the will invalid. Careful preparation of the will – in terms of both content and form – is therefore of considerable importance.

What are the requirements for making a will?

Pursuant to Article 502 TCC, two fundamental requirements must be met in order to make a will: the testator must have reached the age of fifteen and must possess the capacity of discernment.

The capacity of discernment must exist at the time the will is made. Its absence is one of the most frequently invoked grounds in annulment proceedings. Particularly in the case of testators of advanced age or suffering from serious illness, it is advisable to have the capacity of discernment documented by a medical report at the time the will is drawn up, in order to prevent potential disputes at a later stage.

What forms of wills does Turkish law recognise?

The Turkish Civil Code recognises three forms of wills:

1. Holographic will (Art. 538 TCC)

A holographic will must be written in its entirety by the testator’s own hand, from beginning to end. Documents drafted on a computer, produced by typewriter, or containing partially printed text are not valid as holographic wills.

In addition, a holographic will must

• be dated, specifying the year, month and day, and
• be signed by the testator personally.

The date is of particular importance where several wills exist, in order to determine which disposition was made last.

The validity of a holographic will does not require the involvement of a notary or the presence of witnesses. However, in practice it may be advisable to deposit the document for safekeeping with a notary, a justice of the peace, or a competent authority, in order to reduce the risk of loss, destruction, or subsequent disputes.

One of the most common errors encountered in practice is drafting the text on a computer and merely signing it by hand at the end. In such cases, the formal requirements for a holographic will are not fulfilled.

2. Official will (Art. 532–537 TCC)

An official will is drawn up by a public official with the participation of two witnesses. In practice, this is usually done before a notary. A justice of the peace and other legally authorised officials may also perform this function under certain conditions. For Turkish nationals residing abroad, Turkish consulates are likewise authorised to draw up official wills.

The testator communicates his or her last wishes to the public official. The official records this declaration in writing or has it recorded. The recorded text is read aloud to the testator or presented to the testator for review; the testator then confirms that the text reflects his or her wishes and signs it. The witnesses subsequently make the required declarations and sign the document.

An official will is the safer option particularly in the following circumstances:

• where the estate is of substantial value,
• where there is an increased risk of disputes among the heirs at a later stage,
• where estate planning involves a cross-border element,
• where the testator’s wishes are to be documented in a manner that is as evidentially secure as possible.

The statutory restrictions regarding witnesses must be observed. Pursuant to Article 536 TCC, certain persons are excluded from participating in the execution of an official will. Persons lacking legal capacity, persons debarred from public service by a criminal court judgment, illiterate persons, the testator’s spouse, the testator’s ascendants and descendants, siblings, and the spouses of such persons may not act as either the public official or a witness in the execution of an official will.

Furthermore, no testamentary dispositions may be made in favour of the public official and the witnesses participating in the execution of the will, nor in favour of their ascendants and descendants, their siblings, or their spouses. The procedure for drawing up an official will should therefore be conducted with professional guidance.

3. Oral will (Art. 539–541 TCC)

An oral will is a form of will that may only be resorted to in exceptional and extraordinary circumstances. It may be made where the testator is unable to draw up either a holographic or an official will due to imminent danger of death, war, epidemic, interruption of communications, or comparable extraordinary conditions.

In such a case, the testator communicates his or her last wishes orally to two witnesses and instructs them to put this declaration into writing. The witnesses are required to record the declaration without delay, sign it, and deliver it to the competent authority.

An oral will is only temporarily effective. If the testator fails to make a will in another form within one month after the extraordinary circumstances have ceased, although he or she would have been in a position to do so, the oral will loses its validity.

What can be arranged by way of a will?

Subject to the reserved share rules and mandatory provisions, Turkish law grants the testator a broad scope of discretion. The following arrangements, among others, may be made by will:

a) Appointment of heirs

The testator may appoint one or more persons as heirs. The appointed heirs become universal successors of the testator and acquire a share in the estate.

b) Specific legacy

By way of a specific legacy, the testator may bequeath a particular asset – such as a monetary claim, immovable property, or another asset – to a person without conferring on that person the status of heir. In such a case, the legatee may demand fulfilment of the legacy from the heirs.

c) Conditions and charges

A will may be made subject to certain conditions or charges. For instance, it may be stipulated that immovable property shall not be sold for a specified period, that a family business shall be continued for a certain duration, or that an asset shall be used for a specific purpose. However, conditions that are contrary to law, public morality, or public order are invalid.

d) Appointment of an executor

The testator may appoint an executor in the will. The executor may assume a key role in the administration of the estate, the settlement of debts, the fulfilment of legacies, and the conduct of the distribution of the estate. This option may prove particularly useful in practice where the estate structure is complex.

What limits do the reserved share rules impose?

The testator’s freedom of disposition is not unlimited. Turkish law provides for reserved share protection in favour of certain close relatives. The reserved share represents the minimum inheritance entitlement that the testator cannot override, even by will.

The general framework for reserved share beneficiaries is as follows:

• Descendants: one half of the statutory share
• Parents: one quarter of the statutory share
• Surviving spouse: varies depending on the class of heirs with whom the spouse concurs

The surviving spouse’s reserved share is:

• the entirety of the statutory share where the spouse concurs with descendants or the parental class,
• three quarters of the statutory share in all other cases.

The testator may only dispose freely of the disposable portion remaining after deduction of the reserved shares.

Where a will or other dispositions upon death infringe the reserved share, the affected reserved share beneficiaries may bring a reduction action. The statutory preclusion periods applicable to such actions must be observed. Accurate calculation of the reserved shares from the outset is therefore of essential importance in estate planning.

What is the difference between an annulment action and a reduction action?

Two principal types of action may be brought against a will: the annulment action and the reduction action. These two actions serve different purposes and are subject to different requirements.

a) Annulment action (Art. 557–559 TCC)

An annulment action arises where the will is affected by a material defect. Pursuant to Article 557 TCC, the grounds for annulment are: lack of capacity of discernment; the will having been made under the influence of error, fraud, duress or coercion; illegality or immorality of the content or of the conditions attached thereto; and formal defects. An annulment action may result in the will being declared invalid in whole or in part.

b) Reduction action (Art. 560–571 TCC)

A reduction action, by contrast, is brought where a valid will infringes the reserved shares. The will remains valid in principle; however, to protect the reserved share beneficiaries, dispositions exceeding the disposable portion are reduced proportionally.

Statutory preclusion periods apply to both types of action. As the right to bring an action may be lost if these periods are missed, a prompt legal assessment of the facts is recommended following the opening of the succession.

How can a will be revoked or amended?

A will may, in principle, be revoked or amended at any time. Under Turkish law, revocation and amendment are possible by various means:

a) Making a new will

The testator may wholly or partially revoke an earlier will by making a new one. The later will takes precedence over the earlier dispositions to the extent of any inconsistency.

b) Destruction

A holographic will, in particular, may be revoked by the testator by tearing it up, burning it, or otherwise destroying it. However, it should be ensured that the destruction was genuinely carried out with the intention to revoke and that this cannot subsequently be called into question.

c) Implied revocation by subsequent disposition

Even where the testator does not expressly state “I revoke my earlier will”, a subsequent disposition that is incompatible with the earlier one may render the earlier arrangement ineffective to the extent of the inconsistency.

To avoid uncertainty, it is advisable to state expressly in the new will that all earlier wills are revoked.

What special rules apply to foreign testators?

In estate planning with a connection to Turkey, the cross-border element may have significant consequences. In particular, for foreign nationals holding assets in Turkey, the applicable law and the formal validity of the will must be carefully assessed.

Applicable law

Pursuant to Article 20 of the Turkish Act on International Private and Procedural Law No. 5718 (IPPL), succession is governed by the national law of the testator. However, Turkish law applies as an exception with respect to immovable property situated in Turkey. In the estate planning of foreign nationals who own real property in Turkey, Turkish inheritance law must therefore additionally be taken into account.

Form of the will

With regard to the form of the will in cases involving a cross-border element, reference is to be made to Article 7 pursuant to Article 20(4) IPPL. Accordingly, dispositions upon death may be valid both where they comply with the formal requirements of the law of the place of execution and where they have been executed in a form consistent with the testator’s national law. However, where dispositions are intended to have effect with regard to immovable property situated in Turkey, compatibility with Turkish inheritance law must be assessed separately.

Acquisition of immovable property by foreign heirs in Turkey

The transfer of immovable property by way of succession may be subject to additional restrictions on real property acquisition for foreign heirs. Following the opening of the succession, the land registry proceedings and any applicable restrictions should therefore be assessed separately.

What should be considered in practice?

When drawing up a will in Turkey or in connection with Turkey, particular attention should be paid to the following points:

1. Where assets are located in more than one country, a comprehensive estate plan should be developed taking into account the differences between the applicable legal systems.
2. Where immovable property is situated in Turkey, Turkish law must be considered separately for those assets.
3. In cases involving complex family structures, previous marriages, reserved share beneficiaries, or substantial assets, the execution of an official will is in many cases the safer choice.
4. After a will has been drawn up, the text should be reviewed in the event of significant changes in circumstances – such as marriage, divorce, the birth of a child, substantial changes in the estate, or relocation to another country.
5. Where a will is not drawn up in the Turkish language, translation and interpretation difficulties may arise in practice. It is therefore advisable to prepare the text in compliance with Turkish law and to obtain professional translation assistance where necessary.
6. Dispositions made without regard to the reserved share rules may become the subject of litigation among the heirs after the testator’s death. A will should therefore not only reflect the testator’s wishes but also be legally enforceable.

Conclusion

A will is an important instrument of estate planning that provides the opportunity to determine the distribution of assets after death in advance. However, wills drawn up without due consideration of the formal requirements, testamentary capacity, reserved share rules, cross-border aspects, and the nature of the estate may give rise to significant disputes following the death of the testator.

In particular, for persons holding assets in Turkey, for families living in more than one country, for foreign testators, and for those seeking comprehensive estate planning, it is of essential importance that the will be prepared with professional guidance.

For legal advice on drawing up a will and on estate planning in Turkey, please do not hesitate to contact us.