Article 605/1 of the Turkish Civil Code clearly regulates the right to reject an inheritance by stating, “Legal and appointed heirs may reject an inheritance. If the inability of the deceased to pay is clearly evident or officially determined at the date of death, the inheritance is deemed to have been rejected.” Rejection of inheritance is the unilateral declaration of will by the appointed or legal heir, rendering the principle of universal succession ineffective. On the other hand, rejection of inheritance is a legal transaction that eliminates the automatic acquisition of the inheritance retroactively until the moment of the deceased’s death.
There are two types of inheritance rejection institutions in the above-mentioned Article 605 of the Turkish Civil Code. In the first of these, the heir is required to make a clear declaration of will regarding the rejection of the inheritance (True Rejection of Inheritance). The second type of rejection of inheritance is when the inability of the deceased to pay is clearly evident or officially determined. (Turkish Civil Code, Article 605/2). Our study deals with the first of the institutions of rejection of inheritance.
The real rejection of inheritance occurs when the legal and appointed heirs of the estate notify the court of peace, verbally or in writing, of their will not to accept the inheritance in accordance with the conditions stipulated in the law. Within this framework, the state may also reject the inheritance as the legal heir. The declaration regarding the rejection of inheritance has a disruptive innovation nature and cannot be unilaterally reversed after reaching the judge of peace. However, if the conditions are met, a lawsuit for annulment of the rejection may be filed in accordance with Article 31 of the Turkish Code of Obligations.
Within this framework, Article 609 of the Turkish Civil Code states that “the rejection of inheritance is made by the heirs to the court of peace through a verbal or written declaration. The rejection must be unconditional and unconditional. The judge of peace records the verbal or written rejection declaration in a report. The declaration of rejection made within the period is recorded in the special register by the court of peace of the place where the inheritance is opened and if the rejecting heir requests, a document showing the rejection is given to him. The way the minutes and the register are to be kept is regulated by the statute.” As can be understood from the provision, the competent and authorized court for the rejection of the inheritance is the civil court of peace of the place where the inheritance is opened. Article 576 of the Turkish Civil Code includes the regulation regarding the court of the place where the inheritance is opened. According to the provision; “The inheritance is opened in the place where the deceased resides for the entirety of the property.” Therefore, the competent court for the rejection of the inheritance is the civil court of peace of the place where the deceased resides.
It should be noted that the rejection of the inheritance must be unconditional. In other words, in order for the rejection to have legal consequences; it must not contain any conditions, it must be clear, definite and unambiguous. However, if the heir rejects a fractional part of the inheritance share, this declaration is considered valid. Because in this case, there is no condition, only the content of the inheritance share is limited. According to Article 606 of the Turkish Civil Code; “The inheritance can be rejected within three months. This period starts from the date on which the legal heirs learn of the death of the deceased, unless it is proven that they learned of their heirship later; and from the date on which the disposition of the deceased is officially notified to the heirs appointed by will.” According to Article 606/2 of the TMK; “…. For the legal heirs, it starts from the date on which the legal heirs learn of the death of the deceased, unless it is proven that they learned of their heirship later.” The beginning of the rejection period for appointed heirs is also regulated in the same paragraph. Accordingly; “…it starts to operate for heirs appointed by will from the date on which the testator’s disposition is officially notified to them.”
The Turkish Civil Code includes regulations regarding the beginning of the rejection period as well as the deprivation of the right of rejection in its article 610. Accordingly; “An heir who does not reject the inheritance within the legal period shall unconditionally acquire the inheritance. An heir who interferes with the estate transactions as an heir before the end of the rejection period, who does things other than the ordinary management of the estate or what is necessary for the execution of the decedent’s affairs, or who conceals or appropriates the estate assets cannot reject the inheritance.”
All these issues make it necessary to touch upon the consequences of the institution of rejection of inheritance. First of all, if it is necessary to touch upon the consequences of the rejection of inheritance for the appointed heirs, according to article 611/2 of the Turkish Civil Code; “The share of the designated heir who rejects the inheritance shall pass to the closest legal heirs of the testator, unless it is understood from the testator’s death-related disposition that his wishes were otherwise.” In the case of the testator’s rejection of the inheritance, “If the testator rejects the will, unless it is understood from the disposition that the testator’s wishes were otherwise, the testator benefits from this rejection (Turkish Civil Code, Article 616/1).” Finally, we find it useful to mention the lawsuit for annulment of rejection. The lawsuit for annulment of rejection must be filed within six months. This period is the limitation period. The six-month period begins on the day the heir rejects the inheritance. Even if the creditors learn that the inheritance was rejected after six months, they cannot request the annulment of the rejection. The Court of Cassation, 2nd Civil Chamber, has ruled as follows in its decision Merits No. 9178, Decision No. 11843, Dated 12.09.2005;
“….According to Article 609 of the Turkish Civil Code, the rejection of inheritance is made by the heirs to the Court of Peace by verbal or written statement. The rejection must be unconditional and unconditional. The judge of peace records the verbal or written rejection statement in a report. It includes the provision. The rejection statement was made to the court on 24.3.2004. From this date until the date of the lawsuit on 27.9.2004, the six-month limitation period in Article 617/1 of the Turkish Civil Code has passed. The limitation period is taken into consideration by the court ex officio. It was not correct to give a written decision when the lawsuit should have been rejected on the grounds that the limitation period had passed.”[1]
In addition, according to the established decisions of the Court of Cassation and the Code of Civil Procedure No. 6100, the competent and authorized court in the case for the annulment of rejection is the Civil Court of First Instance of the place of residence of the deceased.
[1] The Court of Cassation, 2nd Civil Chamber, Merits No. 9178, Decision No. 11843, Dated 12.09.2005.