14thLaw Office 2015/1687 E. , 2015/6049 K.
“Justice Text”
COURT: İzmir 7th Civil Court of First Instance
DATE: 13/05/2013
NUMBER: 2009/45-2013/222
At the end of the proceedings made by the attorney of the plaintiffs, upon the petition filed against the defendants on 02.02.2009, upon the request for annulment of the heirship; After the judgment of 13.05.2013 regarding the acceptance of the case was requested by the Supreme Court of Appeals with a hearing, the attorney of the plaintiffs and the attorney of the defendants without a hearing, upon the appointed date of 02.06.2015, the attorney of the plaintiffs appealed, Atty. N..S…it has arrived. No one else came. An open trial has begun. After the decision to accept the appeal petition, which was understood to be in time, the verbal explanations of the attendees were heard. The trial was declared over. The matter has been decided. Afterwards, the file and all the papers in it were examined and the necessity was considered:
_DECISION_
In their lawsuits brought to the defendant Nükhet, the plaintiffs demanded the annulment of the inheritance and its consequences, that Meral, the successor of the parties, lost them from the inheritance with her will dated 24.08.2004 in the İzmir Notary Public; With their petition dated 15.07.2011, they turned against the other defendants, claiming that the real estate donated to the internal defendants in order to smuggle property from the estate should be subject to criticism.
Defendant Nükhet states that the reasons for the loss of inheritance are real; The internal defendants, on the other hand, defended the rejection of the case by stating that the period of deprivation of rights had passed and the parties could not be changed in the case.
The court decided that the plaintiffs should pay 65,924.63 TL separately to the defendant Nükhet, and each of the plaintiffs could claim 21,066.92 TL separately from the internal defendants.
The judgment was appealed by the counsel for the defendants and the counsel for the plaintiffs.
1-According to the trial, the evidence collected and the content of the file, the other appeals of the defendants’ attorney and the plaintiffs’ attorney, which are outside the scope of the paragraph below, were not found appropriate and had to be rejected.
2-The lawsuit is about the annulment of the inheritance from the inheritance and the requests for criticism.
The heir with a reserved share can be removed from the inheritance in whole or in part by unilateral testamentary disposition. The reason for removal from heirship must be clearly and concretely demonstrated in the testamentary disposition. The reasons for expulsion from inheritance can be grouped under two main headings: ordinary and protective. The ordinary grounds for dismissal are to commit a serious crime against the legator or one of the relatives of the legator or to substantially fail to fulfill his obligations arising from family law. Since the testator always has the right of disposal for the share other than the reserved share, the conditions of expulsion (disposal) are not sought for the share other than the reserved share.
The expelled heir may object to the expulsion by filing a lawsuit against the legal heirs of the decedent and the descendants, if any, of the decedent. In the action to object to the removal, the burden of proving that the reasons for the removal have taken place falls on the defendant’s heirs or testamentary beneficiary.
If the reason for the removal has not been shown or if it has not been proven by the defendants, the heir who has been removed may request the criticism of the reserved share. Even in this case, the heir who has been removed cannot demand the amount exceeding the reserved share and the removal process is carried out except for the reserved share. If a clear mistake is made about the reason for the removal, the removal is completely canceled and is treated as if no removal was made.
In the concrete dispute, the testator Meral, with the will that he prepared at the İzmir .. Notary Public on 24.08.2004, stated that the plaintiff o.. V. did not fulfill his adoption duty, did not return the savings he received as a debt, and smuggled property; The plaintiff also removed her daughter Nilgün from the inheritance on the grounds that she did not fulfill her adoptive duty. The testator has no heirs other than the plaintiffs and the defendant Nükhet. According to Article 512 of the TMK, the defendant Nükhet, who has the burden of proof, could not prove that the grounds for dismissal were fulfilled. For this reason, the plaintiffs continued the case with a request for criticism, since the dismissal was invalid pursuant to Article 512/final of the TMK. In the report dated 28.03.2013, the assets and liabilities of the estate were determined and the value to be criticized was determined and the hidden shares of the plaintiffs were found. However, although the value evaluated in the criticism account of the testator in İşbank was accepted as 45,674.78 TL, the amount transferred via İ…B.. was reported to be 48,644.66 TL. In addition, although the plaintiffs stated that after the death of the testator, they paid the dues and tax debts of the immovables belonging to the testator; Adequate examination and research has not been done on this subject and these costs have not been taken into account in the determination of the liability of the estate. In addition, 507/2 of the TMK. Although the three-month expenses of the people living with and cared for by the deceased are determined as 1.800.00 TL, it has not been clearly determined with whom the deceased lives and by whom. It can be saved by determining the assets and liabilities of the inheritance of the deceased on the date of death, taking into account the deficiencies explained.The amount of r needs to be determined.
In addition to all these, pursuant to Article 571 of the TMK, the action for criticism must be filed within a period of disqualification, one year, in any case ten years, from the date of learning that his reserved share has been damaged. In the concrete case, the plaintiffs stated in their petition dated 02.02.2009 that the testator transferred the immovable property owned by the defendant to the internal defendants, who are the children of the defendant Nükhet. The plaintiffs made this real estate the subject of a lawsuit in their internal lawsuit petition dated 15.07.2011. It can be seen that, pursuant to Article 571 of the TMK, a one-year period of disqualification has passed.
For this reason, while the court had to reject the case against the internal defendants on the grounds that the statute of limitations had expired, it was not considered correct to give a written decision, and the judgment had to be overturned for these reasons.
CONCLUSION: The rejection of the other appeals of the counsel of the defendants and the counsel of the plaintiffs due to the reasons explained in the subparagraph (1) above, the OVERFLOW of the judgment upon the acceptance of the objections of the counsel of the defendants and the counsel of the plaintiffs for the reasons explained in the subsection (2), the attorney’s fee of 1,100 TL being collected from the defendants and given to the plaintiffs, It was unanimously decided on 02.06.2015, with the possibility of rectification within 15 days from the notification of the decision.
