Disinheritance is a unilateral disposition subject to death that prevents the deceased from receiving a share of the inheritance if the deceased’s reserved share heir’s assets are insolvent or if he behaves in a manner that undermines family ties. It should be noted that disinheritance can only be considered for reserved share heirs. The reason for this is that the deceased can make a testamentary disposition on the shares of heirs who do not have a reserved share without being subject to any restrictions. Within this framework, in accordance with Article 506 of the Turkish Civil Code, the deceased’s reserved share heirs are; spouse, descendants and mother-father. Since descendants include children who have a lineage relationship with the deceased, as well as adopted children and their descendants, it is also possible to disinherit them.[1]
Criminal disinheritance is the disinheritance of a reserved-share heir by the testator due to the faulty and serious disruption of family ties by committing at least one of the acts mentioned in Article 510 of the Turkish Civil Code. According to the provision;
In the following cases, the testator may disinherit a reserved-share heir by a testamentary disposition:
1. If the heir has committed a serious crime against the testator or one of the testator’s relatives,
2. If the heir has not substantially fulfilled his obligations arising from family law towards the testator or the testator’s family members.
It should be noted that criminal disinheritance can also be made for potential reserved-share heirs. For example, the testator may disinherit his child and grandchild who have committed a crime against him together. However, the Court of Cassation ruled in a decision where the testator also disinherited his son who committed a crime against him and his son’s descendants that he has committed a crime against him that potential reserved-share heirs cannot be subject to disinheritance. The Decision of the 2nd Civil Chamber of the Supreme Court of Appeals, Dated 02.07.2009, Merits No: 2008/3734 and Decison No: 2009/13172 is as follows;
“…As for the examination of the appeal of the other plaintiff Hafize; The testator Yusuf, with his will dated 21.03.1989; stated that he had disinherited his son Ercüment by stating that he had attempted to kill him and killed his wife’s brother Cavit and that this matter had been proven by the decision numbered 1988/16, 1988/53 of the Manisa High Criminal Court, and in the same disposition, he declared that Ercüment’s descendants could not claim a reserved share from the estate…” and died on 15.02.2007. The plaintiff Hafize is the child of the disinherited Ercüment and the grandchild of the testator Yusuf. The inheritance opens upon the death of the testator. Inheritance and the transfer of the inheritance are determined according to the date of the testator’s death. According to Article 510/1 of the Turkish Civil Code, only “reserved “shared heirs” can be excluded from inheritance. Since his son Ercüment was alive on the date of the testator’s death, Hafize’s reserved heirship is out of question on the date the inheritance was opened. Therefore, the disposition regarding “Ercüment’s descendants” in the will is not valid for Hafize. In that case, while it should have been decided to accept the lawsuit regarding the disposition regarding Hafize and to annul the part of the will regarding “Ercüment’s descendants”, it was not found correct to rule for rejection regarding him.”[2]
The first of the grounds for criminal disinheritance is that the heir with a reserved share commits a serious crime against the deceased or his relatives. It should be noted that the heir’s primary and secondary participation in the crime allows disinheritance. In addition, in cases where no prosecution is initiated against the heir with a reserved share, an amnesty is granted or the crime has become statute of limitations, the deceased may disinherit. The Court of Cassation also considers the crime remaining in the form of an attempt as a ground for disinheritance. The decision of the Court of Cassation 3rd Civil Chamber’s, Merits No: 2013/15148 and Decision No: 2013/16683, Dated 26.11.2013, regarding the subject, includes the following statements;
“…The heir commits a serious crime against his deceased and his relatives. It is not necessary for this crime to be completed, nor is it necessary for there to be a conviction in this regard. It is not important to benefit from amnesty and statute of limitations…”[3]
“…The testator stated in his will that his daughter (Tülay), whom he disinherited, had insulted him and other family members and made serious accusations against his honor and dignity, and declared that he disinherited the plaintiff. These events that the testator indicated as the reason for disinheritance, if true, are of a weight that would justify disinheritance. The defendants have proven the reality of these events indicated as the reason for disinheritance with the criminal file and witness statements they presented as evidence. In this case, while the case regarding the cancellation of the disinheritance transaction should have been rejected, the decision to accept it in writing was inappropriate and necessitated reversal…”[4]
The second reason for criminal disinheritance is the heir’s significant breach of obligations arising from family law. The law does not list the obligations arising from family law. However, in the doctrine, the cases of significant breaches of alimony obligations, duties between parents and children, and the obligation of fidelity between spouses are mentioned as the reasons for criminal disinheritance.[5] The Court of Cassation has accepted that a grandson’s claim that his grandfather, the former Minister of Foreign Affairs, who filed a lawsuit to prevent intervention against him, had lost his mental faculties during the trial and that this claim was reflected in the press as a reason for criminal disinheritance. Decision of the Court of Cassation 2nd Civil Chamber’s, Merits No: 1976/2467, Decision No: 1976/2802 and Dated 30.03.1976 regarding the subject is as follows;
“…In the incident, the person who disposed of the inheritance was a person who had directed Türkiye’s foreign policy as a minister for many years. Any news and behavior about such people would resonate with the public… The testator filed a lawsuit against his grandson (to prevent intervention) when he was alive, and during the trial, the defendant, after assaulting the plaintiff’s physical structure, claimed that he had a disorder of will and requested that he be taken under medical observation and that his capacity be determined. At first glance, it can be said that there is nothing strange about this claim in terms of procedural law. However, if we go deeper into the matter, it becomes clear that it is not a suitable defense at all. Namely: If the request is approved, the plaintiff will no longer be able to attend the hearings, and his guardian will represent him. If the request is not accepted, the plaintiff will pursue his case directly or through his attorney. Whether a legal or contractual representative is present at the hearing, the essence of the right and defense does not change. In that case, ensuring that the plaintiff is taken under guardianship does not provide a benefit to the defendant. This being the case, such a claim cannot be compatible with the principle of honesty. It is seen that this behavior constitutes an abuse of right in terms of procedure alone…he caused his grandfather to be referred for examination by claiming that he was incompetent, and as a result of this being spread around and reflected in the press, his place in society was shaken, his value judgments about him were damaged to some extent, his pride was broken, he was extremely hurt by the person from whom he expected care at a time when his life was running out, and thus he fell into a justified disappointment and heartbreak. As if it were not enough that he had not called him for many years and asked him, a grandson who, let alone showing the care that normal human relations require, did not feel the need to ask even during his illness cannot be considered to have fulfilled his legal and moral duty towards his grandfather. This attitude was stubbornly maintained until the day of his death, he kept his belongings that had “memorabilia” value just to upset him and avoided giving them, he did not provide moral support to his testator in any way, and he chose to cause him pain with his unwarranted behavior. The actions described are not part of the inheritance “It is enough for a rejection.”[6]
[1] Kartal, D. B. (2022). Yargıtay Kararları Işığında Mirasçılıktan Çıkarmanın Geçerlilik Şartları, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, 30(2), p. 607.
[2] The Decision of the 2nd Civil Chamber of the Supreme Court of Appeals, Dated 02.07.2009, Merits No: 2008/3734 and Decison No: 2009/13172.
[3] The Court of Cassation 3rd Civil Chamber, Merits No: 2013/15148 and Decision No: 2013/16683, Dated 26.11.2013.
[4] The Court of Cassation 2nd Civil Chamber, Merits No: 2013/1958, Decision No. 2013/4369 and Dated 21.02.2013.
[5] Kartal, D. B. (2022). Yargıtay Kararları Işığında Mirasçılıktan Çıkarmanın Geçerlilik Şartları, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, 30(2), p. 614.
[6] The Court of Cassation 2nd Civil Chamber, Merits No: 1976/2467, Decision No: 1976/2802 and Dated 30.03.1976.