Collusion is defined as the parties agreeing that the contract they have concluded shall not be effective at all or that another contract other than the apparent contract shall be effective. Legally, while absolute collusion is in question if the simulated contract is not effective at all, relative collusion comes into play if another contract is hidden behind the apparent contract. Within this framework, the collusion of the testator is a special type of relative collusion regulated in Article 19 of the Turkish Code of Obligations, since it is a secret contract hidden behind the apparent contract.

The collusion of the testator occurs when the testator transfers the real estate, which he actually wants to donate, with an apparent sales contract in order to steal property from the estate to one of the heirs or a third party. In essence, in the collusion of the testator, the testator aims to deceive his heirs and steal property from his heirs. In clearer terms, although the real purpose of the testator is to donate the real estate to one of his heirs or a third party, he actually makes a donation by hiding behind the appearance of a sale or death support contract in order to prevent his heirs from filing a reduction lawsuit and receiving their inheritance shares on the real estate. The sale or death support contract, which is the apparent transaction made by the testator with one of his heirs or a third party, is invalid because it is fictitious and does not comply with the real wills of the parties. The donation contract, which is a secret contract between the parties, is invalid because it does not comply with the formal requirements.[1]

The Unification of Jurisprudence of the Court of Cassation Dated 01.04.1974 and Decision No. 1/2 is as follows;

“In the event that a person has actually declared his will in the direction of Sale before the land registry officer regarding the immovable property registered in the land registry that he wants to donate in order to deprive his heir of the right to inherit, all heirs whose inheritance rights have been violated, whether they are reserved shareholders or not, may file a lawsuit by claiming that the apparent sales contract is fictitious based on Article 18 of the Code of Obligations and that the secret donation contract lacks the formal condition, and that this right of lawsuit will not affect the rights provided by Articles 507 and 603 of the Civil Code for valid contracts, it was decided by a majority vote at the second meeting of the Grand General Assembly of the Court of Cassation Unification of Jurisprudence dated 1/4/1974.”[2]

As can be understood from the decision, in order for the decedent’s collusion to be in question, first of all, the deceased must have a real estate registered in the land registry. Secondly, the deceased must act with the aim of stealing property from his heirs or the estate while making a disposition. Thirdly, the deceased must declare his will for the sale of the real estate registered in the land registry before the land registry officer and transfer the real estate with an apparent sales contract. It should also be noted that the right to file a lawsuit in the event of the decedent’s collusion is granted to all heirs with or without a reserved share. On the other hand, since the subject of the decedent’s collusion is only the transfer of the real estate, the lawsuit to be filed against the transaction in question is in the nature of a lawsuit for the correction of the land registry and is not subject to the statute of limitations.

Court of Cassation 11th Civil Chamber, Merits No. 2017/2861, dated 18.09.2017 and Decision No. 2017/4477;

“In this case, although it is not possible to donate real estates in person without being subject to the condition of form; since no form of validity is foreseen for the transfer of possession of movable properties and receivables, the donation of values ​​legally considered as movable property or their transfer free of charge for the purpose of donation is legally valid. In that case; it is not possible to hear the claim of collusion in movable properties, receivables and rights.”[3]

Court of Cassation 1st Civil Chamber, Merits No. 2017/1863 and Decision No. 2020 / 811, Dated 12.02.2020;

“However, immovable properties that are not registered in the land registry are movable property and donation contracts made by transferring the right consisting of possession are not subject to any formal conditions. Therefore, the donation-like disposition made in secret is valid. The Unification of Jurisprudence Decision No. 1/2 dated 01.04.1974 has no application against valid transactions made by the testator by transferring the possession of immovable properties without a title deed.”[4]

Court of Cassation 1st Civil Chamber, Merits No. 2014/14293 and Decision No. 2016/1290, Dated 08.02.2016;

 “It should be stated immediately that it is indisputable that the Unification of Jurisprudence Decision No. 1/2 dated 1.4.1974 has no application in the transfer of cooperative and company shares, which constitutes the assignment of personal rights. It is clear that if the conditions for such assignments exist, they will be subject to the reduction provisions.”[5]

Court of Cassation 1st Civil Chamber, Merits No. 2016/1993 and Decision No. 2018/15445, Dated 12.12.2018;

“In the present case; considering that the deceased Şemi, shortly before her death, transferred the immovable property in question to her son, the defendant …, by showing it as a sale for a price much lower than its real value, and that there was no money in her estate, and that especially the places left to her daughters by her deceased husband were sufficient and therefore she did not want to leave property to them, and that she did not have a reasonable reason for the sale, it is understood that the assignment made to the defendant … was for the purpose of stealing property from the heirs and was a sham. On the other hand, if the defendant company, the last registered owner, had good faith in its acquisition in accordance with Article 1023 of the Turkish Civil Code No. 4721, it is certain that it will be under legal protection. However, it is not possible to say that the investigation conducted by the court in this direction is sufficient to make a decision.

In this case, considering that the basis for the creation of the land registry records of the immovable properties in the name of the defendant is the unilateral declaration of the deceased, given in the presence of the land registry technician during the land registry and including his/her signature, and that he/she consents to the determination of these places in the name of the defendant, and that there is no contractual relationship providing for the transfer of the immovable properties to the defendant, the Unification of Jurisprudence Decision No. 1/2 dated 01.04.1974 regarding the collusion of the deceased cannot be applied in the case at hand, the case should have been rejected, but it is incorrect to make the decision as written.”[6]

[1] Can Bayhan, D. (2022). YARGITAY KARARLARI IŞIĞINDA MURİS MUVAZAASI OLARAK DEĞERLENDİRİLMEYEN İŞLEMLER. Dicle Akademi Dergisi, 2(2), p. 182.

[2] The Unification of Jurisprudence of the Court of Cassation, Dated 01.04.1974 and Decision No. ½.

[3] Court of Cassation 11th Civil Chamber, Merits No. 2017/2861, dated 18.09.2017 and Decision No. 2017/4477.

[4] Court of Cassation 1st Civil Chamber, Merits No. 2017/1863 and Decision No. 2020 / 811, Dated 12.02.2020.

[5] Court of Cassation 1st Civil Chamber, Merits No. 2014/14293 and Decision No. 2016/1290, Dated 08.02.2016.

[6] Court of Cassation 1st Civil Chamber, Merits No. 2016/1993 and Decision No. 2018/15445, Dated 12.12.2018.