Disinheritance – Lawyer in Izmir
Disinheritance can be defined as depriving heirs entitled to a reserved share of their inheritance under certain circumstances. Heirs entitled to a reserved share who are disinherited cannot receive a share of the inheritance. The concept of reserved share... here You can read our detailed article by clicking here.
The practice of disinheritance applies only to heirs entitled to a reserved share. This stems from the fact that the testator has the right to disinherit legal or testamentary heirs who do not have a reserved share, at their own discretion. However, it should be noted that the situation of individuals designated as heirs through a testamentary agreement is similar to that of heirs entitled to a reserved share. That is to say, the testator cannot unilaterally revoke the testamentary agreement. In this case, if the necessary conditions for disinheritance exist, the testator can unilaterally revoke the testamentary agreement through a will, which is a testamentary disposition, and disinherit the person.
Disinheritance is subject to strict conditions. As a rule, the testator cannot dispose of the reserved shares of the spouse and descendants, who are entitled to a reserved share of the inheritance. In other words, if the conditions for disinheritance are not met, the heirs entitled to a reserved share will receive their reserved shares even if the testator does not intend to. The testator can dispose of the remaining portion of the inheritance as he wishes, excluding the reserved shares.
Civil code'’If we examine the provisions regarding disinheritance:
I. Reasons
Article 510 - In the following cases, the testator may disinherit a reserved heir by means of a testamentary disposition:
1. If the heir has committed a serious crime against the testator or one of the testator's close relatives,
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.
II. Provisions
Article 511 - A person disinherited cannot receive a share of the inheritance, nor can they file a claim for reduction of the inheritance share.
Unless the testator has made other provisions, the inheritance share of a disinherited person passes to their descendants, if any, or to the testator's legal heirs, as if that person had died before the testator.
The descendants of a disinherited person may claim their reserved share as if that person had died before the testator.
III. burden of proof
Article 512 - Disinheritance is valid only if the testator has specified the reason for disinheritance in their disposition.
If the disinherited person objects, the burden of proving the existence of the stated reason falls on the heir or legatee benefiting from the disinheritance.
If the existence of a reason for exclusion cannot be proven, or if the reason for exclusion is not stated in the disposition, the disposition shall be 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 shall be invalid.
IV. Disinheritance due to insolvency
Article 513 - 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.
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.
Legal Consequences of Disinheritance:
Disinheritance can be accomplished through a testamentary disposition. This testamentary disposition can be a will or an inheritance agreement; however, wills are more common. When making this testamentary disposition, the testator must clearly state the reason for disinheriting the reserved heir. This reason must be clear and based on concrete facts and evidence.
- A person disinherited loses their rights to the inheritance. Article 511 of the Turkish Civil Code states this as follows: "A person disinherited cannot receive a share of the inheritance, nor can they file a claim for reduction of the inheritance." The testator can disinherit a reserved heir for their entire share, or for a portion of the inheritance.
- A person who loses their inheritance rights as a result of being disinherited is treated as if they had died before the testator. Unless the testator has made a different disposition, the legal share of the disinherited person passes to their descendants (children), if any, or to the legal heirs of the testator if there are no descendants. The descendants of the disinherited person may claim their reserved share as if that person had died before the testator.
- The testator may have forgiven an heir after disinheriting them; however, forgiveness does not automatically invalidate the testamentary disposition. If the testator expresses their intention through another testamentary disposition, this invalidates the disinheritance. Alternatively, if the testator forgave the disinherited person during their lifetime but did not express this forgiveness through a testamentary disposition, yet re-established family ties with that person, it can be argued that the disinherited person has the right to file a reduction lawsuit under Article 512/III of the Turkish Civil Code and receive their reserved share.
- A testator who has waived the right to disinherit an heir cannot later disinherit the heir based on the same reason.
- According to Article 513 of the Turkish Civil Code, if the certificate of insolvency is no longer valid at the time the inheritance is opened, or if the debt stated in the certificate of insolvency does not exceed half of the heir's inheritance share, the disinheritance disposition is annulled.
- An heir who has been disinherited is not liable for any of the deceased's debts. The heir cannot benefit from any rights or advantages arising from the inheritance, nor is he responsible for any debts.
Relevant Supreme Court Decisions:
The 14th Civil Chamber of the Supreme Court of Appeals, in its decision numbered 2019/805 E., 2019/7396 K., stated: “In cases of disinheritance, the testator may disinherit a reserved heir through a testamentary disposition if the heir has committed a serious crime against the testator or a close relative, or if the heir has significantly failed to fulfill their obligations arising from family law towards the testator or members of the testator's family. A disinherited person cannot receive a share of the inheritance. The inheritance share of the disinherited person passes to their descendants, if any, or to the legal heirs of the testator, as if that person had died before the testator. The descendants of the disinherited person may claim their reserved share as if that person had died before the testator.”.
The decision of the 3rd Civil Chamber of the Supreme Court of Appeals, dated January 26, 2021, numbered 2019/5571 E., 2021/471 K., states: "...the testator has the right to disinherit an heir if the heir fails to fulfill their familial duties towards the testator through negligent behavior, such as mistreating and using offensive language towards the testator and family members, failing to inquire about them during holidays, and disclosing family secrets, all of which constitute a serious breach of familial duties..."‘
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