A person’s hidden share heirs are his descendants, parents and surviving spouse. Whether a person is a reserved shareholder or not, if he or she commits some unlawful actions against the enterprise and his relatives, for example, if he tries to kill him or kills him unlawfully and deliberately, he cannot be an heir, this is a situation of deprivation of inheritance. It produces results by itself without the need for any death-related savings. In this article, we will focus on the situations that cause expulsion from criminal inheritance, which is stipulated in MK ARTICLE 512. Pursuant to this arrangement, the descendants of the inheritor, each of his parents or his surviving spouse can be removed from the inheritance by a death-related disposition of the legator due to some behaviors they have performed against the inheritor. There are 2 possibilities to take away the hidden shares of the heirs of the hidden share.
Waiver agreement: It is a bilateral agreement that the parties will conclude with a mutual declaration of will.
Iskat: It is a transaction that results in a unilateral legal action.
DISCONTINUATION (ISKAT)
Pursuant to Article 510 of our Turkish Civil Code;
If the heir has committed a serious crime against the inheritor or one of the relatives of the legator,
If the heir has not substantially fulfilled his obligations arising from family law towards the legator or the family members of the legator.
COMMITTING A HEAVY CRIME
It is clearly understood from the expression of committing a serious crime in the first paragraph that it must be a crime within the meaning of the Penal Code. However, the weight of the crime from a serious crime phrase is not a weight in the sense of Criminal Law. This crime must be a crime that will damage family ties stemming from family law. The judge will judge whether this crime has damaged family ties or not. The crime committed by the heirs of the hidden share against the inheritor and their relatives should both objectively be a crime that will break the family ties and subjectively have the belief that family ties have been broken.
It does not matter whether the perpetrator was tried and punished. What matters is the damage the action does to family ties. In addition, the heir of the hidden share to be dismissed does not need to be a direct (primary) perpetrator. This heir encourages crime, instigates etc. it could be.
In order for us to talk about a crime, it must be committed unlawfully and deliberately. For example, if the heir attacks him because he was attacked by the legator, and the heir stabs the legator in self-defense, we cannot talk about an unlawful act here. In the same way, if the heir does not have the power to distinguish while performing the act, it is not possible to talk about the reason for the loss, since it will be considered a fault.
“to one of his relatives” mentioned in the first paragraph. What we need to understand from the phrase is that if the spouse of the inheritor, his relatives by blood and in-laws, his adopted son, fiancée, and even if he does not have an adoptive bond with the inheritor, he is considered one of his relatives. The friends of the inheritor are also considered his relatives.
2nd Civil Chamber of the Supreme Court of Appeals E-2004/5159 K-2004/6038 In its decision dated 10.05.2004, “From the collected evidence; It is understood that this situation arose as a result of the faulty behavior of the plaintiff (Halil), who was one of the children of the legator, who owed excessive debt, and because of this debt, the creditors threatened the deceased with death and shot his house. Children have to protect the peace and integrity of the family, show help and respect for each other. The inheritor was not mistaken in the reason for the abandonment. It is in place. It is against the procedure and the law to make a judgment in writing when the court should reject the case.” The shooting of the family house due to the child’s debts was deemed to be the reason for the dismissal.
Again, in the decision dated 04.02.2002 and numbered 2002/194 E. 2002/1169 K. of the 2nd Civil Chamber of the Supreme Court of Appeals, it was confirmed by the testimonies of the witnesses that the plaintiff was excessively indifferent to his descendant, did not open the door to him, and turned off the phones in his face. The reason has come true. In that case, it was not considered correct to accept the case in written form and to decide on the annulment of the will, while the case should be rejected in accordance with Article 459 of the Civil Code of Turkish Law No. 743.” He accepted that the reason for expulsion from heirship was realized in terms of the heir who was extremely indifferent to the inheritor, turned off the phones in the face of the inheritor and did not open the door. “
VIOLATION OF OBLIGATIONS ARISING FROM FAMILY LAW
When we look at the phrase “if the legislator has not substantially fulfilled his obligations arising from family law” in the 2nd paragraph, we should immediately look at Articles 364 and 322 of our Civil Code.
Item 364- Everyone is obliged to give alimony to his/her superior and subordinate and siblings, who will fall into poverty if he/she does not help.
Item 322- Mother, father and child are obliged to help each other, to show respect and understanding and to protect the honor of the family, as required by the peace and integrity of the family.
Another obligation is the obligation of loyalty between spouses. Of course, adultery is grounds for divorce.
action will constitute a reason for rejection for the spouses.
The legislator says “. If he has not substantially fulfilled his obligations.” Again, the judge will appreciate whether these obligations are fulfilled. Violation of these obligations must be significant both objectively and subjectively.
A WILL MUST BE MADE BASED ON THE REASON OF ISKAT
The reason for penal dismissal is as much as we counted. For removal from inheritance, a unilateral testamentary disposition should be made based on the reasons we have mentioned. This brings us to the Will in general. However, it is exceptionally included in the unilateral content of the inheritance contract. This will can be any kind of will. Formal will, handwritten will, verbal will. But in general, handwritten and official wills appear.
The reason for the abandonment should be clearly stated in the will. So some general statements are not enough. For example, statements such as “he violated his family obligations” and “he committed a serious offense against me” are not sufficient. The action that caused the failure must be clearly stated. Otherwise, we may face the annulment of the testamentary disposition and may claim the forfeited reserved share.
If the reason for the dismissal is not clearly stated or when we look at the 512th article of our Civil Code, who will bear the burden of proof when the deceased heir files a lawsuit for the annulment of the death-related disposition;
Item 512- Removal from heirship is valid only if the legator has stated the reason for removal in his/her disposition.
If the person removed from the inheritance objects, the proof of the existence of the stated reason falls to the heir or the testator who benefits from the removal.
If the existence of the reason cannot be proven or the reason for removal is not specified in the savings, the savings are fulfilled except for the heir’s reserved share; however, if the legator has made this savings because of a clear mistake about the reason for the removal, the removal will be invalid.
We see that the burden of proof falls on the heirs who benefit from the loss.
When we look at the 1st paragraph, although the reason for the dismissal is not shown, it may mean that the redemption savings are invalid.
The person who was denied can claim his reserved shares with a lawsuit for criticism. However, if he wishes to receive his entire share from the inheritance, if the will has formal disabilities or in cases where the testator is incapacitated at the time of making this will, the deceased heir may request the annulment of the death-related disposition and obtain the entire inheritance share.
