Testamentary disposition is a legal transaction that includes the orders of the legator that will take effect after his death. (1) Testamentary dispositions are divided into two sub-headings: material and formal. In the material sense, testamentary dispositions are summarized as the assignment of heirs and leaving certain property, and in the formal sense, the testamentary dispositions are summarized as will and inheritance contracts. In a material sense, testamentary disposition can form the content of both types of formal dispositions, and can be included in a will or an inheritance contract. (2) An inheritance contract is a bilateral testamentary disposition that allows the legator to either make a material testamentary disposition on his own estate or to waive the right of heirship that will arise in the future on the other party's own estate. (3) An inheritance contract can be made in the form of positive-negative, unilateral-bilateral or with consideration-without consideration. In this article, examinations about the establishment, annulment and annulability of the inheritance contract with consideration are given.
1. Establishment of Inheritance Contracts with Consideration
A. License Condition
Article 503 of TCC (Turkish Civil Code) is taken as a basis, since there is no special regulation in terms of qualification in order to be able to make an inheritance contract with consideration. According to this, everyone who has the mental competence, of age and does not have a state of limitation is qualified to make an inheritance contract. In other words, the party disposing of testamentary must have full legal capacity. The party that will not make a testamentary disposition can be a party to the contract within the framework of the general qualification rules. (4) However, an opinion in the doctrine argues that in the inheritance contract with consideration, the legator can also conclude this contract according to the general qualification rules. (5)
B. Form Condition
In article 545 of TCC, it is stipulated that the inheritance contract should be prepared in the form of an official will. An official will is drawn up by the official in the presence of two witnesses. An official is a magistrate, a notary public or any other official who has been given this authority by law. Inheritance contract with consideration is also arranged in the form of an official will. Inheritance contract is a testamentary disposition in terms of form. For this reason, it is necessary to comply with the rules of prohibition of representation, limited number (numerus clausus) and the principle of starting and ending in a reasonable time (unitas actus) while fulfilling the form requirement. (6)
2. Types of Inheritance Contract with Consideration
A. Waiver of Inheritance Contract with Consideration
Waiver of inheritance can only be made through an inheritance contract.
In the waiver of inheritance contract with consideration, the heir renounces the inheritance as a result of a consideration received or to be received in the health of the legator. The legator becomes obligated to the one who renounces the inheritance. The said consideration may be an act that may be subject to any debt relationship. The important thing is that the nature of the act (movable, immovable, etc.) has been decided. (7)
As regulated in article 528/3 of TCC, after the agreement of waiver of inheritance is established, the waiving party loses its title of heir, and the descendants of the waiving party cannot claim rights regarding the inheritance either. However, it is possible to agree the opposite of this with a contract.
The legislator has brought an exception for the creditors in the legal consequences of the waiver with consideration.
Article 530 of TCC:
"If the estate cannot meet the debts at the time of the opening of the inheritance and the debts are not paid by the heirs, the waiving party and the heirs are liable to the creditors for the compensation they received from the legator for the waiver in the five years before his death, with the amount of their enrichment at the time of the opening of the inheritance."
In summary from the text of the article, in such cases, the creditor may apply to the heirs of the waiving party in the waiver agreement with consideration.
B. Positive Inheritance Contract with Consideration
A positive inheritance contract with consideration is that the other party is indebted to a fiduciary in return for the death-related savings made by the legator. This can be in the form of assigning an heir, or it can be in the form of the appointment of a testator.
A positive inheritance contract can be made unilaterally, bilaterally or multilaterally in return for a certain consideration. The fact that the parties are close relatives or spouses does not prevent them from making the contract. (8)
The right to reject the inheritance of the heir appointed with a positive inheritance contract with consideration is reserved. If he rejects the inheritance, he can request the consideration back according to the provisions of unjust enrichment.
3. Inheritance Contract with Consideration & Reduction
Reduction is a situation that arises when the right of the heirs with reserved shares are violated. In that case, all the heirs with a reserved share (descendants, parents or spouses of the heir) whose share is violated by the inheritance contract with consideration will be able to file a reduction case.
4. Termination of Inheritance Contracts with Consideration
A. Voluntary Termination
In article 547 of TCC, the way of returning from the direct inheritance contract with consideration is regulated. According to this;
"The party that has the right to demand the acts between the people in accordance with the inheritance agreement, can withdraw from the agreement in accordance with the rules of the law of obligations, if these actions are not fulfilled or guaranteed in accordance with the agreement."
The right to withdraw from the contract belongs to the one who renounces the inheritance contract with consideration, and the legator in the positive inheritance contract with consideration. In a positive inheritance contract with consideration, the other party does not have the right to withdraw from the contract, even if the legator has spent his inheritance during his lifetime. (10) In this case, the other party shall seek his right according to the general provisions, such as demanding the restriction of the legator.
However, in the doctrine, according to Neslihan Akça's view, article 547 of TCC should be interpreted broadly and the other party should have the right to withdraw from the contract as follows:
“If the inheritor prodigalize or donates his assets and significantly reduces his estate while he is alive, the other party to the contract may also withdraw from the contract in accordance with the aforementioned provision. Because this is the most appropriate solution to fairness. In addition, the acceptance of this solution is compatible with the acceptance of the equivalent of the actions under the inheritance contract with consideration.’’
The parties can terminate the inheritance contract with consideration by agreement. In this case, they can also make an agreement in ordinary written form without being bound by the formal will conditions. It is debatable whether the signature of the person making the testamentary disposition is sufficient in the text of the ordinary written agreement. (11)
In article 546/2 of TCC, the right of the legator to unilaterally withdraw from the contract is regulated:
“If it turns out that the person who is assigned heir by an inheritance contract or to whom certain property is left, acts against the legator that constitutes a reason for disinheritance after the conclusion of the inheritance contract; the legator can unilaterally terminate the inheritance contract.’’
For example, if the person appointed as the heir causes the death of one of the family members of the legator or if his immoral acts are detected, the legator may withdraw from the contract without seeking any form requirement.
B. Legal Termination
As regulated in article 548 of TCC, if the person who is appointed an heir or inherited in his favor dies before the legator, the contract is automatically terminated. If there is a gain between the heirs, the heirs of the deceased can demand this gain back from the inheritor at the rate of enrichment on the date of death.
Inheritance deprivation status are regulated in article 578 of TCC and its continuing articles. In this case, the inheritance contract becomes void by itself. The legislator considers the inheritance contract valid in case of amnesty of the legator. An important point is that the positive inheritance contract with consideration is given before the deprivation situation, it is debatable whether the party deprived of the inheritance can request the consideration back. According to the provisions of unjust enrichment, there are opinions arguing that the consideration can be requested back.
Since the divorced spouses will lose their legal inheritance rights, the inheritance contract ends. Spouses may agree otherwise by contract.
C. Cancellation Requests by Implementation of the Nullity of the Contract
The reasons for annulment of the inheritance contract are incompetence (claiming that one of the parties has lost his capacity due to age, etc.), violation of form, illegality and immorality (defining an immoral act as an imposition) and disability of will. Of these, the state of disability of will is valid for the party who has made testamentary disposition, in case of error, deception or intimidation, he can request annulment. The other party may request annulment by alleging a disability of will, according to the regulation in the Code of Obligations.
The right to file an action for annulment is terminated by one year starting from the date on which the plaintiff learns about the disposition, the reason for annulment and that he is the rightful owner, and in any case, ten years against the bona fide defendants, and twenty years against the defendants who do not have good faith, after the date of filing in wills and the passing of inheritance in other dispositions. The case must be filed in the Civil Court of First Instance, in the last place of residence on the date of death of the legator.
The inheritance contract with consideration, which is one of the testamentary dispositions in the formal sense, gives the parties the right of disposition in a broad sense, within the conditions brought by the law. While using this power of disposition, the rights of the heirs with reserved shares should also be taken into account, and it should not be forgotten that as we detailed in the article the transaction is revocable and the ways in which this contract is deemed invalid are limited in the law.
(1) Dural, M. and Öz, T. (2012) Turkish Private Law Volume IV Inheritance Law. 6th Edition Istanbul: Filiz Bookstore. (Pages 49-51)
(2) Hatemi, H. (2021) Inheritance Law. 9th Edition Istanbul On İki Levha Publishing. (Pages 81-83)
(3) Dural, M. and Öz, T. “Turkish Private Law Volume IV Inheritance Law” Pg 96-97
(4) Serozan, R. and Engin, B.I. (2021) Inheritance Law. 7th Edition Ankara: Seçkin Publishing (Pages 283-284)
(5) Akça, N. (2022) Inheritance Agreements With Consideration. 1st Edition Ankara: Adalet Publishing House (Pages 123-128)
(6) Hatemi, H. “Law of Inheritance” P 110-111
(7) Seher Serap Dinçer, Inheritance Waiver Agreement and Its Legal Consequences (Master's Thesis, T. C. Galatasaray University Social Sciences Institute Private Law Department, July 2009, p. 19-22)
(8) Gürcan Kaya, Positive Inheritance Agreement (Master's Thesis, T. C. Çankaya University Social Sciences Institute Private Law Department, March 2014, P. 9-12)
(9) Dinçer, “Waiver of Inheritance Agreement and Its Legal Consequences” P. 141-142
(10) Sekine Derya Yakupoğlu, Binding of Positive Inheritance Agreement, TBB Magazine Issue 136, May-June 2018, Pg 256-257
(11) Serozan, R. and Engin, B.I. “Law of Inheritance” Pg 331-332