The regulation regarding the protection of creditors of heirs who reject inheritance is included in Article 617 of the Turkish Civil Code titled ‘Protection of Creditors of Heirs’. According to the provision;

“If an heir whose assets are not sufficient to cover his debts rejects the inheritance in order to harm his creditors; his creditors or the bankruptcy administration may file a lawsuit for the annulment of the rejection within six months starting from the date of rejection, unless they are provided with sufficient security.

If a decision is made to annul the rejection, the inheritance is officially liquidated.

If anything falls to the share of the rejecting heir from the inheritance thus liquidated, the receivables of the objecting creditors shall be paid first, and then the receivables of the other creditors. The remaining values ​​shall be given to the heirs who would have benefited from the rejection if it had been valid.”

As can be clearly understood from the provision in question, the creditors of the heir who rejects the inheritance do not automatically receive protection if the conditions in the article are met. The Turkish Civil Code protects the creditors of the heir who rejects the inheritance by granting them the right to file a lawsuit for annulment of the rejection if the conditions in the article are met. Therefore, if the lawsuit for annulment of the rejection is not filed, the creditors of the heir who rejects the inheritance will not be able to benefit from the protection provided by Article 617.

The lawsuit for annulment of the inheritance can only be filed if certain conditions are met. The first of these conditions is that the assets of the heir who rejects the inheritance are not sufficient to cover his debts. In other words, the assets of the heir must not cover his liabilities. There is no regulation in the law regarding whether the moment of the death of the deceased or the moment when the lawsuit for annulment of the rejection is filed will be taken as basis in determining the assets of the heir. In the doctrine, the view stating that the value of the assets at the time the lawsuit for annulment of the rejection is filed should be taken as basis is mostly accepted.[1]

The 2nd Civil Chamber of the Supreme Court of Appeals included its findings on this issue in its Decision No. 931/6720 dated 06.04.2010;

“It is understood that, other than the immovable properties to be inherited from the defendant debtor’s father, the immovable properties numbered 400 (1/2 share), 407 (2/6 share) and 2823 located in Sulusaray Village belonging to the defendant were seized with the follow-up file numbered 2006/479 of the Nevşehir 1st Enforcement Office for a receivable of TL 22,845.15 due to the defendant’s debt to another creditor (Medaş); similarly, due to debts to other creditors, the parcels numbered 400 and 407 were seized with the follow-up file numbered 2002/98 of the Nevşehir 1st Enforcement Office for a receivable of TL 10,000.00; and with the follow-up file numbered 2003/2204 of the Nevşehir 2nd Enforcement Office for a receivable of TL 7,053.00; and at the same time, a mortgage was established on the immovable property numbered 2823 in favor of Ziraat Bank. In this way, it has been determined that the assets of the defendant, who rejected the inheritance, are not sufficient to cover his debt.”[2]

It should be noted that in cases where it is clearly evident that the deceased was incapable of paying at the time of death or in cases where it is accepted that the inheritance was rejected by decree (Article 605/2 of the Turkish Civil Code), the rejection of the inheritance by the heir cannot be subject to an annulment lawsuit.[3] Regarding the subject, the 14th Civil Chamber of the Court of Cassation, in its Decision No. 3851/4083, dated 16.06.2021, stated the following;

“On the other hand, in order to determine the reason for the heir’s rejection of the inheritance and whether he/she rejected the inheritance with the aim of harming his/her creditors, the assets and liabilities of the estate must be determined as of the date of the deceased’s death. As of the date of death, all the assets of the deceased constitute the assets of the estate, and all the debts constitute the liabilities of the estate. The fact that the liabilities of the estate exceed the assets indicates that the estate is incapable of paying and therefore the estate is insolvent. It is necessary to ask institutions and organizations such as banks, traffic registration offices, tax offices, municipalities and land registry offices, etc. in accordance with the procedure, whether the deceased has assets or not, and to investigate the deceased’s receivables and debts through the police, and to determine the assets and liabilities in a way that will not cause any hesitation by taking into account the deceased’s active assets and the deceased’s debts and amounts, if any.’’[4]

The second condition that must be met in order to file a lawsuit for annulment of inheritance is that the inheritance must be rejected with the intention of harming the creditors. The Court of Cassation accepts that there is an intent to harm if an heir whose assets are not sufficient to cover his debts rejects the inheritance without a reasonable cause.[5] In fact, the Court of Cassation 2nd Civil Chamber emphasizes this issue in its Decision No. 23145/15700, dated 05.06.2013;

“Since the immorality of the testator’s reason for acquiring the inheritance, which the defendant debtor shows as the reason for rejecting the inheritance, will not have any consequences for his creditor, it must be accepted that he rejected the inheritance with the intention of harming his creditor and thus the conditions for filing a lawsuit for annulment of rejection in Article 617 of the Turkish Civil Code are present.”[6]

The last condition that must be present in the case of cancellation of inheritance rejection is that sufficient security has not been provided to the creditors. There is no clarity in the law on what is meant by ‘sufficient security’. However, it should be stated that sufficient security should not be sufficient to cover the receivables of all creditors, but only those who request the cancellation of the rejection. On the other hand, if the person who files the case for cancellation of rejection is the bankruptcy administration, sufficient security must be provided to cover all receivables registered in the bankruptcy estate.[7]

In addition to these conditions required for filing a lawsuit for annulment of inheritance rejection, the legislator has also set a specific period for filing this lawsuit. According to Article 617 of the Turkish Civil Code, the filing of a lawsuit for annulment of rejection by creditors is subject to a six-month limitation period. It should be noted that the six-month limitation period will start from the date the inheritance is rejected by the heir, even if the creditors learn about it at a later date. The moment the inheritance is rejected by the heir is the moment the declaration regarding this reaches the court of peace.[8] In fact, the Court of Cassation 2nd Civil Chamber, in its Decision No. 23670/16381, dated 12.06.2013, stated the following;

 “The deceased died on 13.11.2009, the defendant applied to the court on 5.2.2010 and made a statement stating that he “unconditionally rejected the inheritance”, and the court ruled to register this statement on 11.06.2010. The lawsuit for the annulment of the decision to reject the inheritance was filed on 2.11.2010. The declaration regarding the unconditional rejection of the inheritance, provided that it is recorded in the minutes (art. 609/3), will have consequences from the moment it reaches the judge of peace and the inheritance will be deemed to have been rejected from this date. The rejecting heir loses his status as heir from this date. In this case, the rejection date is the date on which the declaration regarding this reaches the judge of peace. In view of the clear provision of Article 617/1 of the Turkish Civil Code, it is understood that a 6-month limitation period has passed between the date of rejection and the date the lawsuit was filed.”[9]

[1] Gönen, D. (2022). Mirası Reddeden Mirasçının Alacaklılarının TMK m 617 Kapsamında Korunması. İstanbul Hukuk Mecmuası, 80(3), 847-879. https://doi.org/10.26650/mecmua.2022.80.3.0005

[2] The 2nd Civil Chamber of the Supreme Court of Appeals, Decision No. 931/6720, Dated 06.04.2010.

[3] Gönen, D. (2022). Mirası Reddeden Mirasçının Alacaklılarının TMK m 617 Kapsamında Korunması. İstanbul Hukuk Mecmuası, 80(3), 847-879. https://doi.org/10.26650/mecmua.2022.80.3.0005

[4] The 14th Civil Chamber of the Court of Cassation, Decision No. 3851/4083, Dated 16.06.2021.

[5] Gönen, D. (2022). Mirası Reddeden Mirasçının Alacaklılarının TMK m 617 Kapsamında Korunması. İstanbul Hukuk Mecmuası, 80(3), 847-879. https://doi.org/10.26650/mecmua.2022.80.3.0005

[6] The Court of Cassation 2nd Civil Chamber, Decision No. 23145/15700, Dated 05.06.2013.

[7] Gönen, D. (2022). Mirası Reddeden Mirasçının Alacaklılarının TMK m 617 Kapsamında Korunması. İstanbul Hukuk Mecmuası, 80(3), 847-879. https://doi.org/10.26650/mecmua.2022.80.3.0005

[8] Gönen, D. (2022). Mirası Reddeden Mirasçının Alacaklılarının TMK m 617 Kapsamında Korunması. İstanbul Hukuk Mecmuası, 80(3), 847-879. https://doi.org/10.26650/mecmua.2022.80.3.0005

[9] The Court of Cassation 2nd Civil Chamber, Decision No. 23670/16381, Dated 12.06.2013.