Wills under Turkish Law and the Legal Effect of Foreign Wills in Turkey
Wills and Testaments in Turkey: Differences and Requirements for Inheritance Contracts and Wills
Dispositions of property upon death are legal directives that take effect only after the death of the testator. A will can be made either in the form of an inheritance contract or a testament. A testament is a unilateral declaration of intent that does not require acceptance by any other party. Unlike an inheritance contract, a will can be revoked informally at any time before the testator’s death. The testator must be legally competent and at least 15 years old to create a valid will. If these conditions are met, the capacity to make a will is given.
Understanding Turkish inheritance law is crucial for foreigners looking to create a will in Turkey. The legal requirements for wills in Turkey are specific, and knowing the distinctions between different types of testaments is essential. For instance, notarized wills in Turkey and holographic wills have distinct regulations that must be adhered to for the document to be valid. Foreigners planning to draft a will should be aware that foreign wills in Turkey are recognized, provided they comply with the law of the country where they were created.
Creating a will in Turkey involves understanding the testament regulations in Turkey and ensuring all legal formalities are met to avoid disputes. Inheritance contracts in Turkey are another aspect to consider, as they differ from wills but serve a similar purpose in determining the distribution of assets. The validity of a testament in Turkey can be contested if it does not meet the required standards. Therefore, expatriates should seek legal advice to navigate the Turkish legal system for wills effectively, ensuring their last wishes are honored and legally binding.
Three Types of Wills: A Look at Holographic (Handwritten), Public and Oral Wills in Turkey
There are three types of wills: two ordinary wills and one that is an exception. Holographic and public wills are considered ordinary, while oral wills are the exception.
Public Will
A public will is created under Turkish law with the involvement of two witnesses and a notary. Certain conditions apply to serving as a witness or notary. Individuals who are not legally competent, who are barred from public office by a criminal conviction, who are illiterate, as well as the testator’s spouse, descendants, and their spouses, siblings of the testator, and their spouses and agents cannot serve as witnesses. If such individuals act as witnesses, the public will can be entirely contested.
Additionally, obtaining an assessment of the testator’s mental state from a public hospital is important.
The public will is read aloud by the testator, signed, and notarized in the presence of the witnesses, and then reported to the civil registry office. For illiterate testators, the will is read aloud by the notary in the presence of the witnesses. Upon the testator’s death, the will is automatically sent to the court for probate.
Holographic Will (Handwritten Will)
“How to Draft and Store a Holographic Will?”
A holographic will must be entirely handwritten by the testator. The year, month, and day of the will, along with the testator’s handwritten signature, are essential components. The date allows for verifying the testator’s capacity at the time of the will’s creation. The holographic will can be stored with a notary, a court, or a relevant public official, either in a sealed or unsealed form. However, this is not mandatory and does not affect the will’s validity. The testator can also keep the will personally. To meet formal requirements, the entire text, including the date, must be handwritten. The signature must also be handwritten; a fingerprint or any other form of signing is not allowed. The writing medium and instrument are irrelevant as long as the formal requirements are met, and the testator’s intent is clear. If the last will is declared in a letter, on a postcard, or in a book, it is considered a valid holographic will.
There is a risk of losing such wills. Therefore, heirs should carefully store the will and present it to the court for probate upon the testator’s death.
Oral Will
An oral will is only valid in exceptional circumstances, such as imminent danger to life, war, or illness, where creating a holographic or public will is not possible. The testator declares their last will before two witnesses, who then write it down, including the place and date, and both witnesses sign it. The witnesses must deposit the declaration with the court. The oral will loses its validity one month after the testator is again able to create a written will.
If a written will could have been created but the last will is declared orally, the oral will may be declared invalid.
The Legal Effect of Foreign Wills in Turkey
Wills created abroad according to the laws of the respective country are also recognized in Turkey. According to Article 7 of the Turkish Private International Law Act, “Legal transactions may be concluded in the form provided by the law of the place where they are performed or in the form stipulated by the law governing the legal transaction itself.” Wills validly created according to the national law of the deceased are also recognized. In such cases, Turkish courts must determine and apply the national law of the testator.
This means that wills created before a foreign notary or by a foreigner in their home country are valid under Turkish law. Once these wills are probated by the foreign national court, they must also be probated in Turkey, requiring a corresponding procedure.
If a foreigner wishes to create a will before a foreign notary or a holographic will covering assets in Turkey, it is advisable to seek advice from a Turkish lawyer to avoid disputes regarding validity and ensure the testament’s implementation.
Joint Wills / Berliner Testament
Can Joint Wills Created Abroad be Recognized under Turkish Law?
Simultaneous and reciprocal joint wills are not found in Turkish law. Joint wills created abroad do not meet Turkish formal requirements. For example, a holographic will declaring the joint intent of two persons, signed by both, is invalid under Turkish law, as is a single will created by two people before a notary.
Furthermore, there are wills where two testators appoint each other as heirs. The Berliner Testament is one such will. According to Turkish Supreme Court jurisprudence, these wills can be contested. Despite formal defects, a will is present.
The literature debates whether such wills can be maintained by reinterpreting them as individual wills. The prevailing view holds that a joint will can be upheld if it meets all formal requirements for one testator unless one will’s invalidity renders the other’s ineffective. The other view and Turkish Supreme Court jurisprudence interpret such wills as inheritance contracts, thus maintaining the testator’s intent. Therefore, consulting a legal expert on the validity of such wills under Turkish law is advisable.
Regarding foreign wills, invalidity claims due to non-compliance with legal form requirements are not applicable. Wills are considered valid in Turkey if they comply with the law of the state where they were created. You can click here to read more articles on inheritance law. https://kocaersoz.com/en/working-areas/inheritance-law-turkey
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Power of Attorney for Turkey
13 October 2023
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