The Requirement of the Beneficiaries of the Exclusion to Prove the Correctness of the Reason for the Exclusion
In the decision of the 3rd Civil Chamber of the Supreme Court of Appeals, dated 26.3.2019 and numbered 2017/13850E-2019/2573K, “The inheritor indicated in his will dated 05/09/2007 that the reason for the removal from inheritance was that the plaintiffs, who had daughters despite his illness, did not look after him. In the concrete case; until the decedent’s residence in the village, he went to … from time to time for treatment due to his illness, his wife died on 03/07/2007, after a while the decedent’s son moved to … It has been confirmed by the testimonies of witnesses heard that he stayed here, … and that the plaintiffs residing in … came to the village until the date of their relocation and fulfilled their obligations arising from family law against the legator; in other words, the defendants who benefited from the exclusion could not prove the accuracy of the reason given. When the decision is examined, it is seen that when an heir is removed from the heir, the other heirs are obliged to prove the correctness of the reason for this removal. In the case subject to the decision, he excluded his daughters from inheritance, on the grounds that he did not take care of her during her sick times. The plaintiffs also filed a lawsuit demanding the annulment of the removal. Despite the fact that the other heirs who were the defendants in this case were obliged to prove that the reason for removal was valid, they could not prove this issue and it was revealed that the witnesses and the plaintiffs did not neglect their family obligations and that it was unfair to exclude them from the inheritance.
In Divorce, Faulty Spouse Cannot Be Heirs
In the decision of the 14th Civil Chamber of the Court of Cassation dated 18.10.2017 and numbered 2016/14899E-2017/7670K, “As it is known, it is stipulated in Article 181 of the TMK that the other spouse who is found to be defective in divorce cannot be the heir, and a separate determination is made in this direction. cannot be sued. In other words, if one of the heirs of the deceased spouse continues the lawsuit during the divorce case, it will be determined whether the other spouse is at fault, and as a result of such a determination, it will be determined whether he can be a legal heir in accordance with the aforementioned legal regulation. There is no doubt that the legal heirs and the inheritance shares will be determined by considering this determination provision in the case that will be filed with the request of issuing a certificate of inheritance. Apart from this; Pursuant to Article 510/1 of the Turkish Civil Code, removal from inheritance can only be made with a death-related disposition. There is also no death-related disposition by which the plaintiff … removes the defendant from heirship. In that case, it is clear that the aforementioned legal regulation (Article 510 of the TMK) cannot be applied in the concrete case, since the conditions for removal from inheritance are not met. In the concrete case, the heirs of the spouse who died during the divorce case claim that the other spouse is defective in the divorce and demand that he be removed from the inheritance. However, the inheritor has not made any death-related savings for removal from heirship. The Court of Cassation, on the other hand, demanded that it be decided that it could not be decided to exclude from heirship in the case where the determination of the faulty spouse in the divorce is requested, with a correct justification, and that if the spouse is already faulty, he cannot be the heir according to the Law, so there is no room for a decision in this case.
Protection of the Hidden Share in the Case of Failure to Prove the Reason for Removal from Inheritance
In the decision of the 3rd Civil Chamber of the Court of Cassation, dated 22.2.2018 and numbered 2017/17228E-2018/1512K, “In the case, it is understood that although the reason for the loss was written in the will dated 14/07/2009, according to the evidence, the reasons for the dismissal sought in the law did not occur. Likewise, the plaintiff could not prove the reasons for annulment in terms of the testament part, except for removal from inheritance. 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.” provision has been made. Since the defendants could not prove the reason for the loss from the inheritance, Article 512/3 of the TMK. In accordance with the article, the loss from the inheritance must be valid at the rate of the savings quorum of the legator. In other words, to be valid within the limits of the savings quorum, it is not considered correct to make a written decision without considering the invalidity of the part of the will and the claimant’s reserved share, and that the case will be continued as a criticism action. In this decision, the Court of Cassation stated that if the reasons given as grounds for exclusion from inheritance cannot be proved by the defendants, the hidden share of the heir removed from the inheritance will be protected, but if there is a disposition above this, this disposition will be valid. To express this issue with an example, in case the decedent has two children and removes one of his children from the inheritance, since the reserved share of the child who is inherited is ¼, the hidden value of the other child who is not removed from the inheritance is ¼.
When he saves ¾ of his inheritance by preserving the month, the child who is removed from the inheritance will receive ¼ inheritance and the savings of ½ will remain valid.
Acceptance of the Action for Annulment of Removal by Other Heirs who are not Removed from Inheritance
In the decision of the 3rd Civil Chamber of the Supreme Court of Appeals, dated 28.2.2019 and numbered 2017/14122E-2019/1702K, “The inheritor has shown the reasons for exclusion from inheritance in his will. Although there were grounds for expulsion from inheritance in the event that was the subject of the case, the defendants … and … accepted the case. In this case, Article 512/3 of the Turkish Civil Code. In accordance with the article, it is not considered correct to reject the request completely without considering that the removal from inheritance will be valid at the rate of the savings quorum of the legator, in other words, the plaintiff may demand their reserved shares from the defendants accepting. In that case; Since admission is a process that ends the case and can be made at every stage of the proceedings, the judgment had to be reversed in order to make a decision about the declaration of acceptance of the case by some of the attorneys of the defendants. When the decision is examined, it is seen that the legator duly showed the reason for the removal within the framework of the testamentary disposition, and the local court decided that the removal was valid, although the heirs who benefited from this removal accepted the case in the action for the cancellation of the removal. Since the declaration of acceptance has legal consequences such as a final verdict, and an annulment can be requested only in cases of loss of will, the local court should have decided to cancel the expulsion. Because the burden of proof is on the defendants in the action for the annulment of the expulsion, if the defendants cannot prove the reason for the expulsion or if they accept the case, a valid expulsion cannot be mentioned anymore.
