Resmi Vasiyetname – İzmir Avukat
To be able to make a will, one must first be at least fifteen years old and have the capacity to make sound judgments.MK.(Article 502). There are certain formal rules and limitations that the testator must adhere to when making a will. The testator does not have unlimited rights to dispose of the estate. The testator's right to dispose of property upon death, that is, the right to draw up a will, must not infringe upon the "reserved shares of the heirs entitled to reserved shares." The testator can only make dispositions in a way that does not affect these reserved shares.
A will is a type of testamentary disposition in which a person declares, either orally or in writing, how their assets will be liquidated and how their inheritance will be distributed after their death. Only a will drawn up in accordance with the law and procedure will produce the effects intended by the testator. Furthermore, it is possible for a person to designate a child, establish a foundation, or make a donation to an existing foundation through a will.
Vasiyetname resmi, el yazılı, sözlü olmak üzere üç şekilde yapılabilir. Resmi vasiyetname, resmi memur tarafından iki tanığın katılmasıyla düzenlenir. Vasiyetnameyi düzenleyecek resmi memur; Sulh hakimi, noter veya kanunda kendisine yetki verilmiş diğer bir görevli olabilir. Ancak kanunda sayılan bazı kişiler vasiyetnamenin hazırlanmasında resmi görevli memur veya tanık olarak bulunamazlar. Bunlar; fiil ehliyeti bulunmayanlar, kamu hizmetinden yasaklılar, okur-yazar olmayanlar, miras bırakanın eşi, alt ve üst soy kan hısımları, kardeşleri, bunların eşleridir (MK. m. 536).
A formal will in which one of the parties involved, such as an official or witness, participates is considered defective in terms of form and may be challenged for annulment. Furthermore, no bequests can be made to the official or witnesses involved in the drafting of the will, their descendants or ascendants, siblings, or spouses through a formal will (Turkish Civil Code, Article 536/11). If bequests are made to these individuals through a formal will, only that portion of the testamentary disposition, not the entire will, should be annulled (Turkish Civil Code, Article 558).
The Turkish Civil Code includes two types of official wills: These wills are divided into two categories: those that are "made by being read and signed" and those that are "made without being read and signed".
1. Read and Signed – TMK 533, 534
A testator wishing to make a testamentary disposition through a formal will first informs a public official of their last wishes in writing or orally. The public official clarifies the will by asking questions to ensure it is understandable and consistent with the testator's wishes. The prepared will is given to the testator for review, and if the testator finds it consistent with their wishes, they sign it. This signature must be in the testator's own handwriting. Using a seal or fingerprint is insufficient; it is grounds for invalidation of the will. After the testator's signature, the public official also signs the text, adding the date. After the public official signs, the testator declares before the public official and two witnesses that they have read the will and that it conforms to their last wishes. Finally, the witnesses state that the testator has read the formal will before them, that it conforms to their last wishes, and that they consider the testator competent to make the will, after which they sign the will. Thus, this first type of formal will is validly drawn up.
2.Okunmadan İmzalanmadan – TMK 535
Those who are illiterate or incapacitated due to illness or blindness, and who cannot read and sign a will, can make this second type of official will. The difference between the first and second types of official wills is that the official and witnesses play a more significant role in the drafting of the will. Similar to the first type, the testator informs the official of their last wishes. The official prepares the will. However, unlike the first type, since the testator is illiterate, the will is read aloud to the testator by the official in the presence of two witnesses. The testator then declares to the official, in the presence of two witnesses, that the will conforms to their wishes. Subsequently, the official writes the date and signs the will. The testator does not need to sign the will after this point; in fact, since they are illiterate, signing is not expected of them. In the final stage, the witnesses testify that the testator was legally competent to make a will, that the text of the will was read to the testator by official representatives in their presence, that the text read was in accordance with the testator's last wishes, and they sign the will.
The most secure way to ensure that the testator's assets are transferred to the heirs in accordance with their last wishes after their death is to make one of the two types of formal wills described above, in accordance with the conditions stipulated by law. Wills are subject to very strict formal requirements. Therefore, although we provide detailed information on the law and its application in this article, we strongly recommend that you seek professional legal assistance through an inheritance lawyer.
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