What is a Will?
A will is a unilateral declaration of intent made by an individual regarding the disposition of all or part of their estate after their death. For this declaration of intent to be legally effective, certain conditions must be met.
Conditions for a Will
To draft a will, the person making the will must meet certain conditions. The first of these is the capacity to discern. Discernment is the ability of an individual to understand the causes and consequences of their actions and desires and to act appropriately based on this understanding. Essentially, this involves the ability to comprehend the connections between individual decisions and actions and to display conscious and measured behavior based on this understanding. The other condition for the person making the will is the age requirement. Accordingly, the person must have reached the age of fifteen. A person under the age of fifteen cannot draft a will.
In addition to these two conditions, another requirement to be followed while drafting a will is the necessity not to violate the reserved portion of the heirs. This condition implies that the person making the will does not have unlimited disposal rights when drafting the will. If you ask who the reserved portion heirs are, they are the descendants, spouse, and parents of the individual. As long as the legally determined reserved portion of these people is not violated, any disposition can be made.
Conditions for a Will |
Discernment Ability |
Above 15 Years of Age |
Adherence to Reserved Portions |
The reserved portion for the compulsory heirs is calculated by proportioning it to the legal inheritance share. The rates for the reserved portion are as follows:
Reserved Portion Heirs | Reserved Portion Rates |
Descendants (Children, Grandchildren, etc.): | 1/2 |
Spouse (Alone): | 3/4 |
Spouse (With Descendants) | The entire legal share of the inheritance |
Spouse (With Parents of the Deceased) | 3/4 |
Parents (Ancestors) | 1/4 |
Types of Wills
Wills are regulated under the Turkish Civil Code, Articles 531 and subsequent. According to this, there are three types of wills: handwritten wills, official wills, and oral wills. This distinction is based on the method of drafting. Each type has its own validity conditions, and a will cannot be considered valid unless these conditions are met.
Official Will
An official will is drafted by a peace judge, a notary, or another authorized official in the presence of two witnesses. The following persons cannot serve as an official or witness:
Those without legal capacity,
Those barred from public service by a criminal court ruling,
Illiterates,
The testator's spouse,
The testator's ascendants or their spouses,
The testator's descendants or their spouses,
The testator's siblings or their spouses.
Individuals meeting one or more of these conditions cannot participate in the drafting process of an official will. Once these requirements are satisfied, the official first prepares the text of the will according to the testator's wishes. After the will is prepared, it is read to the testator for signing. Then, the official also signs and dates it. The testator declares in the presence of two witnesses that they have read the will, and the text contains their final wishes. It is not necessary for the witnesses to know the content of the will; it suffices for them to declare that the statements in the text are the testator's final wishes. The witnesses sign the will, attesting that the declaration was made in their presence and that they found the testator capable of making such dispositions. If the testator is illiterate or visually impaired, the process changes. The official prepares the will text according to the testator's statements and reads it aloud. The testator must declare that these are their final wishes, and finally, the witnesses sign the will, attesting that it was read in their presence and that the testator appeared capable of making such dispositions. The process of drafting an official will follows these steps. Additionally, it is important to note that a medical report from a hospital is required before a notary can draft a will.
| Literate Testators | Illiterate Testators |
1 | The testator expresses their will. | The testator expresses their will. |
2 | An officer prepares the will document. | An officer prepares the will document. |
3 | The testator reads the will document | The officer reads the will document in the presence of the testator and witnesses. |
4 | The testator signs the will. | The testator declares their last wishes. |
5 | The officer dates and signs the will. | The officer dates, seals, and signs the will. |
6 | The testator declares to the witnesses that the will is their last wish. | Witnesses sign the will, stating that the will was read in their presence, that the declaration of the will was made in front of them, and that they deem the testator capable of making such a disposition. |
7 | Witnesses sign the will, affirming that the declaration of the will was made in their presence and that they deem the testator capable of making such a disposition. | |
Handwritten Will
The handwritten will is regulated by Article 538 of the Turkish Civil Code. The most fundamental characteristic of this type of will, as the name implies, is that it must be written in the testator's handwriting. According to this type of will, the person making the will must write it from beginning to end in their own handwriting, including the date and signature, which must also be in the testator's handwriting.
For this will to be valid, it is essential that it is entirely in the testator's handwriting. Any part of it written using a computer, typewriter, print, or stamp, or any other non-handwritten expressions, will invalidate those non-handwritten parts. If the signature and date are not handwritten, the entire will becomes invalid.
The storage of a handwritten will is subject to the testator's will; they may leave it with a notary, a magistrate of civil jurisdiction, an authorized officer, or any person they choose. It can be given either sealed or unsealed. When given to a notary for safekeeping, the notary, upon recognizing it as a will, may request a single doctor's report.
Oral Will
An oral will is the last type of will defined in the law and is subject to much stricter conditions. This type of will can only be considered when the other two types of wills cannot be made. In other words, it is an exceptional type of will. The conditions for making this type of will include:
Imminent danger of death,
Disruption of transportation,
Illness,
War or other extraordinary circumstances, which make it impossible to draft either an official will or a handwritten will.
In these cases, the testator conveys their last wishes to two witnesses, entrusting them with the task of writing down or having someone else write down these wishes. One of the witnesses writes the will with the place, year, month, and day, signs it, and has the other witness sign it too. The witnesses then submit the will to a civil or general jurisdiction court without delay, declaring to the judge that they believed the testator was capable of making a will and that they were informed of the testator's last wishes under extraordinary circumstances. This is the first method for an oral will. The second method involves the witnesses immediately going to a court and recording the testator's last wishes in a protocol. In this method, only the witnesses are not involved in drafting the document.
If the testator later gets an opportunity to make an official or handwritten will, the oral will becomes null and void one month after that date. In other words, one month after the end of the extraordinary situation or situations that necessitated the oral will, if the testator is still alive, the oral will becomes invalid. However, if the testator dies within this period, the oral will remains valid.
In exceptional cases where the testator resorts to an oral will, there is no need for a judge's approval. The people who can approve in place of a judge in these situations are:
A lieutenant or a higher-ranking officer, if the testator is in military service;
The person in charge of a transport vehicle outside the country's borders;
The highest-ranking administrator of a health institution, if the testator is receiving treatment there.
Is It Possible to Revoke a Will?
A will is a disposition contingent upon death. The testator, up until their death, can change the beneficiary, alter the assets bequeathed, or completely revoke the will. Considering the testator has the right to make any changes, it is indeed possible to revoke a will.
However, the methods of revocation may vary depending on the type of will that has been executed. There are three ways to revoke a will. These include:
Drafting a New Will: If the testator makes a new will in compliance with the conditions set out in the law, the later will shall prevail. If it is inconsistent with the previous will, the previous will is considered revoked.
Destroying the Will: The testator can revoke a will by destroying it with the intention of revocation. Destruction here means rendering the will illegible. A will destroyed or tampered with without the testator's consent does not fall under this category. Note that destroying an official will to revoke it is not possible. Revocation of an official will can only be done through a new will or by disposing of the bequeathed assets.
Disposing of the Bequeathed Assets: Another method of revoking a will is by disposing of the assets mentioned in the will. If the testator transfers ownership of these assets after making the will, these assets will not be part of the estate upon death, thus revoking the will. For example, if the testator sells a house they owned at the time of making the will before their death, the house will not belong to the heir upon the testator's death, rendering the will invalid from the date of sale.
How is a Will Opened?
A will is opened through legal proceedings. However, the procedure varies depending on the type of will. If it's an official will or a handwritten will left with a notary or a magistrate of civil jurisdiction, the population registry office, upon the death of the person, will notify the authority that issued the official will, initiating the process of opening the will. The local Civil Court of Law, upon receiving notification of the testator's last residence, will inform the testator's heirs about the opening of the will. The heirs are not obligated to attend the hearing, but if they do, the judge will open and read the will to them. If the heirs do not attend, the judge will proceed with reading the will and executing it.
However, if the will is a handwritten will left with a person or found after the person's death, it must immediately be delivered to a magistrate of civil jurisdiction. Failure to deliver or any delay may result in liability for any resulting damages.
In the lawsuit to open a will, only the contents of the will are determined. Its validity is not assessed.
Cancellation of a Will
A will that is made without adhering to the required validity conditions is not automatically invalid but can be deemed a cancellable will. Therefore, it maintains its validity until it is cancelled. The cancellation of a will must be filed within one year from the finalization of the lawsuit for opening the will. However, against good-faith defendants, a lawsuit must be filed within ten years from the date of opening the will, and against bad-faith defendants, within twenty years. If these periods are not observed, the claim will be dismissed due to the lapse of the statute of limitations.
The lawsuit for the cancellation of a will can be filed by heirs and beneficiaries who have an interest in the cancellation of the dispositions made in the will.
The grounds for the cancellation of a will are limited. These include:
If the will was made while the testator lacked the capacity to dispose of their property,
If the will was made due to mistake, deception, intimidation, or coercion,
If the content, conditions, or obligations of the will are contrary to law and morality,
If the will was made in a form contrary to the requirements specified in the law.
A will can be cancelled for these reasons. If cancelled due to these grounds, the cancellation is retroactive, and the will is deemed never to have had any effect.
Can Foreigners Be Bequeathed Property Through a Will?
The conditions for inheriting property are listed in the Turkish Civil Code, and there is no limitation based on foreign elements. Provided the following conditions are met, a person's foreign status does not matter in terms of their right to inherit:
The heir must be alive at the time of the testator's death,
The heir must have legal capacity,
The heir must not be disqualified from inheritance for any reason.
After these conditions are met, nationality is irrelevant for inheritance rights. According to legal regulations, although inheritance is subject to the national law of the deceased, Turkish Law applies to immovable properties located in Turkey. Thus, a Turkish citizen can appoint a foreigner as a beneficiary in their will, and Turkish Law will apply.
Before 2003, there were some restrictions on foreigners inheriting property. Prior to 2003, under Article 35 of the Land Registry Law, two conditions were required for foreigners to inherit property:
Reciprocity: This meant that if the beneficiary's country did not allow Turkish citizens to acquire property, the beneficiary would also not be eligible to inherit property in Turkey.
Restrictions in Certain Areas: Some laws limited foreigners' rights to acquire property in specific areas. For example, the Village Law prohibited foreigners from acquiring property in villages.
These conditions were abolished with the 2003 amendment. The only current limitation is for military areas. Even if military areas are subject to a will or estate, they cannot be transferred to foreigners, thus preventing inheritance rights in these areas.
However, it should be noted that if the testator died before the 2003 amendment, the Law on the Implementation and Application of the Turkish Civil Code stipulates that "inheritance and the transfer of inheritance shall be determined according to the provisions in force at the time of the testator's death." Therefore, the conditions mentioned above must be adhered to for wills of testators who died before the 2003 amendment.
Can Foreigners Make a Will?
Foreign nationals living in Turkey or owning property there can make a will. However, the question arises whether such a will should be governed by the law of the testator's nationality or by Turkish Law.
For a will to be valid in form, it must be made:
According to the law of the country where it was made,
According to the substantive law provisions of the law governing the transaction,
According to the national law of the deceased.
Thus, for instance, a will made in Russia by a Syrian national concerning properties in Turkey must be made either according to Russian Law, Syrian Law, or Turkish Law. A will validly made under any of these jurisdictions will be effective.
The law applicable to the content of the will differs. While inheritance is subject to the national law of the deceased, if the will concerns immovable property, then Turkish Law must apply. Thus, issues such as whether a foreigner can own the property or any restrictions will be evaluated according to Turkish Law.
Supreme Court Decisions
A judge cannot review whether an oral will meets the legal requirements.
"...As understood from the literal interpretation of the law, a judge approached for recording an oral will shall merely document the will without discussing its conditions and validity. Therefore, in this case, the court judge should have limited their role to recording the will, and it was not appropriate to dismiss the case by entering into the merits of whether the oral will met the legal conditions."
(Supreme Court 3rd Civil Chamber, 25.11.2015, 2015/324 E., 2015/18740 K.)
Without the condition of reciprocity, a foreign national cannot inherit.
"The dispute between the parties concerns whether the daughters, who were Bulgarian nationals at the time of opening of the inheritance, can be heirs to the person who died as a Turkish citizen. … Inheritance opens with death. The change in status of someone who was not an heir at the time of opening of the inheritance does not affect the rights of other heirs. The children of the deceased, who were Bulgarian nationals at the time of the inheritance opening, cannot inherit, and their subsequent acquisition of Turkish nationality does not change this situation."
(Supreme Court General Assembly of Law, 16.4.1997, 1997/2-129E., 1997/360 K.)
Wills remain valid unless contested with a cancellation lawsuit.
"Wills made by incapacitated persons are not automatically void. Even if a will is invalid, heirs may respect the last wishes of the deceased and consider the will valid unless a lawsuit is filed and a cancellation judgment is obtained. To be able to sue for the cancellation of a disposition upon death, one must have acquired the status of an heir at the time of the lawsuit. Heirs cannot sue for the cancellation of a will while the testator is alive."
(Supreme Court 2nd Civil Chamber, 12.3.2007, 2007/2204 E., 2007/3809 Decision)
The Importance of Lawyers in Will-Related Matters
The role of lawyers in the will-making process is significant. A will is used to designate voluntary heirs and express special wishes in accordance with the law. Lawyers help ensure the legal validity and intricacies of the will, reflecting the preferences of the testator in the will. They reduce the chances of unexpected and undesirable outcomes like cancellation or invalidity. Moreover, not only during the preparation but also for heirs, obtaining legal support to contest wills that infringe upon their shares is crucial. The experience of lawyers helps prevent future disputes and complexities for both the testator and the heirs.
Frequently Asked Questions
I don't want to leave an inheritance to my child, what can I do?
Descendants are reserved portion heirs. You cannot violate their reserved portion without specific reasons for disinheritance. Even if your will transfers all your property to someone else, your reserved portion heirs can later file a lawsuit to annul the will and claim their reserved portion.
I found my father's will, what should I do? Will the property be transferred?
The will should be delivered to a civil law judge as found. The property transfer can be completed after the will is read in court and the court's decision is finalized.
Can a will be cancelled?
Yes, you can always cancel a will.
I want to leave all my inheritance to my stepdaughter, is this possible?
If you do not have any reserved portion heirs (your descendants, spouse, or parents), it is possible. If you have reserved portion heirs and still transfer it, they can claim their share of the property.
An inheritance was distributed according to a will made by my deceased ex-spouse, can it be annulled?
If the will does not meet validity conditions, a lawsuit can be filed for its annulment. However, if reserved portions are violated, a lawsuit can be filed to reclaim the respective share.
Who are Reserved Portion Heirs?
Reserved portion heirs include the deceased's descendants, spouse, and parents.
Can I bequeath my property to a foundation or association through a will?
Yes, both natural and legal persons can be beneficiaries in a will. Thus, you can bequeath to a foundation or association.
I want to establish a foundation or association with my property, is this possible?
Yes, you can designate a foundation or association as a beneficiary or for the establishment of these entities in your will.
Can I bequeath only a part of my property?
Yes, you are not obligated to include all your property in the will. You can even bequeath items with no monetary value, like a pen in your house.
Can I designate multiple beneficiaries in my will?
Yes, current laws do not limit the number of beneficiaries in a will. You can designate as many beneficiaries as you wish.
What is the difference between making and not making a will?
Without a will, the estate is divided according to legal shares. With a will, you can dispose of your property (except for the reserved portion of reserved portion heirs) as you wish.
The property in the will is under seizure, what happens now?
If the property in the will is under seizure, it cannot be disposed of. The seizure remains until the debt is paid. If the creditor demands the sale of the property, any surplus after paying off the debt will belong to you.