The action for reduction is one of the innovative cases with an earlier effect, regulated in Article 560 and following articles of the Turkish Civil Code, aiming to reduce the deceased’s gains, both due to death and inter-livings, which damage the reserved shares of the testator, to the limit that the testator can save by the heirs who, as a rule, cannot receive compensation for their reserved shares. When viewed from this aspect, the criticism case should be considered as an annulment case specific to Inheritance Law. In other words, criticism is the sanction of the reserved share.[1]

Reduction lawsuit is a lawsuit that can only be filed in case of the death of the testator, and it is not possible for the heirs with reserved shares to claim their reserved shares through this lawsuit before the death of the testator.

Turkish Civil Code regulates reserved heirs as descendants, parents and surviving spouse of the deceased. According to the Turkish Civil Code;

• Half of the legal inheritance share for descendants,

• One quarter of the legal inheritance share for each mother and father,

• For the surviving spouse, the entire legal inheritance share in case he/she is the heir together with the descendants or the parents’ class, in other cases, three quarters of the legal inheritance share.

It is a reserved portion.

In accordance with the regulation dated 10.05.2007, the siblings of the testator ceased to be heirs with reserved shares. Therefore, in cases of deaths occurring before 10.05.2007, siblings are heirs with reserved shares in terms of criticism cases filed after this date, while siblings of the testator are not heirs with reserved shares in terms of deaths occurring after 10.05.2007. For this reason, it is out of the question for them to file a criticism lawsuit.

The Decision of the 16th Civil Chamber of the Supreme Court of Appeals on the Subject, Merits No. 2011/8011 and Decision No. 2012/859, is as Follows;

The plaintiff … filed a lawsuit against …, … and …, stating that his deceased brother …, who died on 26.05.2009, bequeathed all his assets to …, one of the defendants, with his will dated 13.05.2009. He stated that the share rules were violated and requested a decision to revoke the will. The defendants requested the dismissal of the lawsuit. At the end of the trial, the court decided to reject the case on the grounds that the plaintiff was not a reserved heir; The verdict was appealed by the plaintiff.

…It was unanimously decided to APPROVE the verdict, which is in accordance with the procedure and law, by rejecting the objections that were not approprate.

Although, as a rule, only heirs with reserved shares can file a reduction lawsuit, it is also possible for their creditors to file a reduction lawsuit in cases where the heirs with reserved shares do not file a reduction lawsuit. However, in order for the creditors of the heirs with reserved shares to file a reduction lawsuit, they must have a certificate of insolvency at the time the inheritance is opened. It is not possible for the creditors of the heirs with reserved shares to file a retaliation lawsuit with the certificate of insolvency received after the inheritance has been opened. In addition, if the debtor, who is a reserved heir, is bankrupt, the bankruptcy estate may file a lawsuit for reduction. For this, first of all, the creditors and the bankruptcy estate must give time to the heir with the reserved share, who is the debtor, to file a lawsuit. If the heir with reserved share does not file a retaliation lawsuit within the time they know, they can file a retaliation lawsuit themselves.

The right to file a lawsuit for reduction is granted to each reserved heir. More clearly, heirs with reserved shares can file a lawsuit against each other together as co-defendants, or each of them can file a lawsuit on their own, independently of the others. In such a case, the reduction will be made only in proportion to the reserved share of the heir with the reserved share who filed the lawsuit, rather than the entire rate to be reduced. In this respect, the retaliation lawsuit has consequences only for the heirs with reserved shares who filed the lawsuit. In addition, in the criticism case filed in case of optional companionship, the court must make a separate judgment for each plaintiff.

The Decision of the 3rd Civil Chamber of the Supreme Court of Appeals on the Subject, Merits No. 2020/129 and Decision No. 2020/1841, is as Follows;

Since the right to file a reduction lawsuit is a right arising from the inheritance status of every heir who has a reserved share, and since there is no lawsuit on behalf of the estate, there is no obligation for all heirs to file the reduction lawsuit together, but it can be filed by a single heir alone. In other words, there is no compulsory companionship in the criticism case. For this reason, in cases where more than one heir files a lawsuit together, the provision for reduction must be established separately for each plaintiff.

Whereas; In the concrete dispute, the criticism case was filed by two heirs, but the local court not only made a single judgment instead of making a separate judgment for each heir, but also decided to pay 14.868,75 TL, which should be ruled for a single heir, according to the criticism calculation made by the expert. It was decided to pay to two heirs.

As such; While the local court should have made a provision for the payment of 14,868.75 TL, determined by the expert, to the plaintiffs separately, the decision to pay the amount determined for a single plaintiff to both plaintiffs was not correct, and this issue required reversal.

Another important issue is against whom the criticism case can be filed. As a rule, a criticism case is filed against the persons to whom the benefit has been made. However, the Supreme Court of Appeals accepts that if the person liable for criticism transfers the goods to third parties in order to avoid criticism, the criticism case can also be filed against third parties, provided that the third parties in question have bad faith (knowing or being able to know the intention to avoid criticism).

Another issue that needs to be emphasized is the cases where a certain property that cannot be divided without decreasing its value is subject to criticism. In this case, the beneficiary of the will has the right to choose. According to Article 564 of the Turkish Civil Code;

If a certain property, which cannot be divided without decreasing its value, is subject to reduction in the will, the creditor of the will may, if he wishes, request the return of the property by paying the value of the part that needs to be reduced, or the money that covers the value of the disposable portion.

If the property subject to savings remains with the testament creditor, it is decided that the value of the part of the property that must be given to the testament debtor due to the reduction, otherwise remaining within the savings rate, will be paid in cash for the value on the day of the decision.

These rules also apply to the elimination of inter-profit winnings.

Regarding the subject, the Decision of the 1st Civil Chamber of the Supreme Court of Appeals, Merits No. 2015/9555 and Decision No. 2016/949, is as Follows;

When it comes time to reduce the savings made to the defendant, it should be investigated whether it is possible to share the property subject to savings at the rate established between the value of the entire savings and the excess donation made to the defendant (Fixed Reduction Rate). At the end of this research, if the property subject to disposal can be divided at a fixed ratio, it should be decided to register these parts as independent sections in the name of the parties.

If the indivisibility of the property subject to disposal is revealed at a fixed reduction rate, the right of preference in the said Article 564 will come to the fore. Without such a situation arising, it is not possible for the defendant to exercise his/her choice before the defendant’s right to choose arises. If a preference has been mentioned before, it will not produce any results. Then, the defendant’s preference should be asked and, in accordance with the Unification of Jurisprudence Decision No. 4/4 dated 11.11.1994, the value of the property, which is the subject of a lawsuit and cannot be divided according to the fixed reduction rate, should be determined according to the market rate on the date of the decision, and it should be decided to pay the cash to be found by multiplying this value with the fixed reduction rate.

However, in the calculus made ex officio by the court, the estate is determined as of the date of death of the testator; It is inappropriate to make a decision without determining the fixed reduction rate, without investigating whether the defendant immovable properties will be divided according to the fixed reduction rate, and without giving the defendants the right to choose if division is not possible.

In addition, the criticism is carried out in a sequential order, and death-related savings and income gains made to public legal entities and public benefit associations and foundations are criticized last. Reduction, until the reserved share is completed, first from the savings due to death; If this is not enough, it is made from the intervals, going back from the newest to the oldest.

Finally, the retaliation lawsuit is subject to limitation periods. The right to file a lawsuit for compensation expires one year from the date on which the heirs learn that their reserved shares have been damaged, and ten years have passed since the date of opening of the inheritance in the case of wills and the date of opening of the inheritance in other dispositions. If the cancellation of a decision causes the previous one to come into force, the deadlines begin to run on the date the cancellation decision becomes final. A reduction claim can always be made through defense.

REFERENCE

Decision of the 3rd Civil Chamber of the Supreme Court of Appeals, Dated 26.04.2018, Merits No: 2016/16908 and Decision No: 2018/4599

The Decision of the 16th Civil Chamber of the Supreme Court of Appeals on the Subject, Merits No. 2011/8011 and Decision No. 2012/859

The Decision of the 3rd Civil Chamber of the Supreme Court of Appeals on the Subject, Merits No. 2020/129 and Decision No. 2020/1841

The Decision of the 1st Civil Chamber of the Supreme Court of Appeals, Merits No. 2015/9555 and Decision No. 2016/949

[1] Decision of the 3rd Civil Chamber of the Supreme Court of Appeals, Dated 26.04.2018, Merits No: 2016/16908 and Decision No: 2018/4599