Will Enforcement Lawsuits in Turkey: Requirements, Time Limits and Procedure

The fact that a will leaves you a specific property, vehicle or sum of money does not mean that the asset passes to you automatically upon the testator’s death. Under the Turkish Civil Code (TMK), the heirs acquire the estate as a whole upon death (TMK Art. 599); the legatee (vasiyet alacaklısı), by contrast, acquires only the right to demand that the heirs perform the legacy. If the heirs do not fulfil this obligation of their own accord, the remedy is the lawsuit known in practice as the lawsuit for enforcement of a will (vasiyetnamenin tenfizi davası).

The legal basis of the enforcement lawsuit

A testator may leave a specific asset to a person without appointing that person as heir. This benefit may take the form of ownership of an asset in the estate, a right of usufruct, payment of a specific sum of money, the grant of an annuity or release from a debt (TMK Art. 517).

The law expressly defines the right of the person in whose favour the legacy is made as a personal claim: the legatee brings the claim against the executor of the will (vasiyeti yerine getirme görevlisi), if there is one, or otherwise against the statutory or appointed heirs. The legatee may sue an heir who fails to perform this obligation for delivery of the asset or transfer of the right; where the legacy concerns an act, the legatee may claim compensation for the damage arising from its non-performance (TMK Art. 600).

This distinction is important: a person appointed as heir by will acquires the estate by operation of law and proves this right with a certificate of inheritance. The enforcement lawsuit, on the other hand, is the route available to a person who is not an heir and has only been left a specific asset.

Before the lawsuit: delivery and opening of the will

A precondition of the enforcement lawsuit is that the will has been opened by the civil court of peace (sulh hukuk mahkemesi). The statutory sequence is as follows:

1. Delivery: A will found after the death must be delivered to the civil judge of the peace immediately, regardless of whether it is valid. A person who has kept the will or found it among the deceased’s belongings is liable for any resulting damage if he or she fails to fulfil this obligation as soon as he or she learns of the death (TMK Art. 595).
2. Opening: The will is opened by the civil judge of the peace at the testator’s place of residence within one month of its delivery and read out to the persons concerned. The known heirs and other interested parties are summoned to the opening (TMK Art. 596).
3. Service: Every person with rights in the estate is served with a certified copy of the part of the will that concerns them; those whose addresses are unknown are served by public notice (TMK Art. 597).
4. Objection and certificate: If no objection to the disposition is made within one month of its notification, the civil court of peace issues the beneficiary a certificate showing that he or she is a legatee (TMK Art. 598(2)).

The opening of a will is not a decision on its validity. The record of the opening shows the existence of the will in the enforcement lawsuit; any dispute over validity is dealt with in an action for annulment or by way of defence.

Requirements of the lawsuit

For an enforcement lawsuit to succeed, the following elements must generally all be present:

• An opened will containing a disposition leaving a specific asset to the claimant.
• The legacy claim must be due. Unless the disposition provides otherwise, the claim becomes due when the person obliged to perform the legacy accepts the inheritance, or when the right to disclaim it lapses on expiry of the three-month disclaimer period (TMK Art. 600(1), Art. 606).
• Correct joinder of the parties. If an executor of the will has been appointed, the lawsuit is filed against the executor; otherwise, it is filed against the heirs. In practice, all of the heirs must be party to the lawsuit; incomplete joinder of the parties is one of the main reasons why proceedings are prolonged.
• The bequeathed asset must be in the estate. If the asset left is not in the estate, the heirs are released from this obligation unless the disposition indicates otherwise (TMK Art. 517(3)). The asset is delivered in the condition it was in when the succession opened; benefit and risk pass to the legatee from that moment (TMK Art. 518).

The executor of the will is the person appointed by the testator in the will. The civil judge of the peace notifies the executor of the appointment, which is deemed accepted if it is not refused within fifteen days (TMK Art. 550).

Time limits at a glance

In inheritance disputes, most losses of rights result from time limits. The time limits directly connected to the enforcement lawsuit are:

Step	Time limit	Starts from	Legal basis
Delivery of the will	Immediately	Learning of the death	TMK Art. 595
Opening of the will	1 month	Delivery to the civil judge of the peace	TMK Art. 596
Objection to the disposition	1 month	Notification	TMK Art. 598(2)
Disclaimer of the inheritance	3 months	Learning of the death	TMK Art. 606
Executor’s refusal of the appointment	15 days	Notification of the appointment	TMK Art. 550
Enforcement lawsuit (limitation)	10 years	Learning of the benefit, or the claim becoming due	TMK Art. 602
Action for annulment	1 year; in any event 10 / 20 years	Learning; opening of the will	TMK Art. 559
Action for reduction	1 year; in any event 10 years	Learning; opening of the will	TMK Art. 571

The ten-year period for the enforcement lawsuit is a limitation period and runs from the date on which the legatee learns of the testamentary benefit; if the legacy obligation becomes due at a later date, the period starts from the due date (TMK Art. 602). The time limits for actions for annulment and reduction, by contrast, are preclusive. In an action for annulment, the ten-year outer limit applies against defendants acting in good faith; against defendants not acting in good faith, the limit is twenty years.

The heirs’ defences: annulment and reduction

The two defences most frequently raised by heirs in an enforcement lawsuit are that the will is invalid and that their reserved shares (saklı pay) have been infringed.

Grounds for annulment

A testamentary disposition may be annulled if it was made at a time when the testator lacked testamentary capacity; if it was made as a result of mistake, fraud, threat or duress; if its content is contrary to law or morality; or if it was made without complying with the statutory formal requirements (TMK Art. 557). A will may be made in official form, in the testator’s own handwriting or orally (TMK Art. 531); each of these has its own formal requirements.

Even if the time limit for an action for annulment has expired, invalidity may always be raised by way of a plea (def’i) (TMK Art. 559(2)). For this reason, the defendant heirs in an enforcement lawsuit may raise the invalidity of the will as a defence even if they have not filed a separate action for annulment.

Reduction and the reserved share

If the testator has descendants, parents or a spouse, he or she may make testamentary dispositions only in respect of the portion outside the reserved shares (TMK Art. 505). The reserved shares are as follows (TMK Art. 506):

• Descendants: half of their statutory share.
• Each parent: one quarter of his or her statutory share.
• Surviving spouse: the whole of the statutory share if inheriting together with descendants or with the parents’ line, and three quarters in other cases.

The reserved share of siblings was abolished in 2007 by Law No. 5650.

A worked example: Suppose the testator leaves a spouse and two children, and the estate is worth TRY 8,000,000 after deduction of debts. The spouse’s statutory share is one quarter (TMK Art. 499), and each child’s statutory share is three eighths.

• The spouse’s reserved share is the whole of the statutory share: TRY 2,000,000.
• Each child’s reserved share is half of the statutory share: TRY 1,500,000.
• The reserved shares total TRY 5,000,000; the portion the testator may freely dispose of is TRY 3,000,000, i.e. 37.5% of the estate.

In this example, if a property worth TRY 4,000,000 is bequeathed, the legacy exceeds the disposable portion by TRY 1,000,000. Heirs whose reserved shares are infringed may seek reduction (tenkis) of this excess (TMK Art. 560). The disposable portion is calculated on the basis of the state of the estate on the date of the testator’s death, after deducting debts and funeral expenses (TMK Art. 507).

Even if the time limits for an action for reduction have expired, a claim for reduction may always be raised by way of a plea (TMK Art. 571(3)). For the legatee, this may mean that the enforcement lawsuit results in a judgment not for the entire legacy but only up to the amount of the disposable portion.

Land registration in bequests of real estate

Ownership of bequeathed real estate first passes to the heirs upon death. Registration in the legatee’s name is possible either by the heirs carrying out the transfer at the land registry office or, failing that, by a registration order issued in the enforcement lawsuit. For the judgment to be enforceable at the land registry, it is important that the statement of claim sets out the block, parcel and independent unit details of the property in line with the title deed record.

Competent court and territorial jurisdiction

• Opening of the will: the civil court of peace at the testator’s place of residence (TMK Art. 596).
• Enforcement lawsuit: the civil court of first instance, the court of general jurisdiction for disputes concerning property rights (Article 2 of the Code of Civil Procedure No. 6100 (HMK)).
• Territorial jurisdiction: In lawsuits against the heirs filed before the final partition of the estate, the court of the deceased’s last place of residence has exclusive jurisdiction (HMK Art. 11(1)(b)).

Points to watch

• If you hold the original will, it should be delivered to the civil court of peace immediately after learning of the death; a person who fails to deliver it may be held liable for any resulting damage.
• Before the lawsuit is filed, all of the heirs should be fully identified using the certificate of inheritance and civil registry records.
• The limitation period runs not from the opening of the will but from learning of the benefit; the time limit should be calculated accordingly.
• If the value of the bequeathed asset exceeds the disposable portion, the possibility of facing a reduction defence should be factored into the litigation strategy from the outset.

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This article has been prepared for general information purposes only and does not constitute legal advice. You are advised to consult a lawyer for an assessment of your specific situation.