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ACTION FOR CANCELLATION OF DEATH CONSEQUENTIAL
ACTION FOR CANCELLATION OF DEATH CONSEQUENTIALI. Reasons for annulment action
Item 557- A lawsuit can be filed for the annulment of a testamentary disposition for the following reasons:
- If the savings were made at a time when the inheritance did not have the capacity to save,
- If the savings are made as a result of error, deception, intimidation or coercion,
- If the content of the savings, the conditions to which it is connected or the downloads are against the law or morality,
- If the savings are made without complying with the forms prescribed in the law.
Death-related dispositions are legal transactions that include the last wishes of the legator, in order to give effect and result after the death of the legator. Death-related savings have legal consequences with the death of the legator, not when they are made.
The action for the annulment of the death-related savings can only be opened after the death of the legator. According to Article 557 of the Turkish Civil Code, in case of incapacity of the decedent, incapacity of the legator due to mistake, deception or intimidation, crippling the will of the legator, unlawful or immoral conditions of the content of the savings, or in case the death-related disposition is made without complying with the formal conditions stipulated in the law, the annulment of the death-related disposition may be requested. .
In case of absence, final nullity or revocation of the testamentary dispositions, a non-periodical negative declaratory action may be filed. The judge has to consider these matters ex officio in the dispute before him. The judge’s decision here will be of a declarative nature.
Absence occurs when there is no declaration of will of the legator, which is the founding element in death-related savings. In cases where the legator does not have a will to have legal consequences or makes a hypnotized statement under direct physical coercion, there is no need to file a lawsuit for annulment, since there is no will for legal action. With the negative declaratory action, absence can be determined regardless of the duration.
Can it be cancelled?
The absence of the animus testandi element can also be mentioned in cases contrary to the prohibition of representation. Can the right to make a testamentary disposition and determine its content, which is a strictly personal right, be left to a third party? As we have said, since the right to make a testamentary disposition and determine its content is a right that is strictly dependent on the individual, if the exercise of this right is left to third parties, there will be an absence of testamentary dispositions. Some opinions in the doctrine argue that in case of violation of the prohibition of representation, an annulment sanction should be applied.
In the event that the subject of the testamentary disposition is impossible from the beginning, the sanction of final nullity should not be applied by saying that the testament should be kept alive if a solid value has emerged.
In Article 515 of the TMK, it is regulated that the death-related disposition is meaningless and only includes conditions and burdens that disturb others. Here, too, there is absolute nullity without the need for annulment. Here, the legator has the will to save on death, but the legislator has desired and brought a regulation in this direction only for the records that disturb others to be deemed null and void without being subject to an annulment action.
The action for the annulment of the death-related disposition must be filed within 1 year from the date on which the plaintiff learned the reason for the annulment and that he is the rightful owner. If no lawsuit is filed, the savings will become valid. If the will to establish a foundation is declared by testamentary disposition and this disposition is against the law and morality, if an action for annulment is not filed in due time, the judge who will decide on the registration of the foundation must reject this request.
What will happen if the legator learns about the disability of his will before he dies is regulated in Article 504 of the Turkish Civil Code. If the inheritor has not used this right when he has the opportunity to withdraw from the savings, the right of the heirs to file an annulment case is also removed with the death of the legator.
Injury of will Article 504- The death-related savings made by the legator under the influence of error, deception, intimidation or coercion are invalid. However, if the legator does not return from the savings within one year, starting from the day he learned that he was mistaken or deceived, or that he got rid of the effect of intimidation or coercion, the savings are considered valid.
In case of a clear mistake in specifying the person or thing in the death-related disposition, if the true desire of the legator can be determined definitively, the disposition is corrected according to this desire.
The action for the annulment of testamentary dispositions may relate to the annulment of all or part of it. If a part of the death-related savings is requested to be canceled, the remaining parts will remain valid. If there is a close connection between the canceled savings and the remaining savings, with the application of the second paragraph of the 27th article of the Turkish Code of Obligations, it should be decided to cancel all testamentary savings.
Stj. Av. Rumeysa Özge Uzkan
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