What Are the Limitations of a Will under Turkish Law?
Under Turkish law, testamentary dispositions may generally be made in two main forms: inheritance agreements and wills. Both instruments are intended to produce legal consequences after the death of the person making the disposition, namely the testator or testatrix.
An inheritance agreement is a contractual disposition mortis causa. Pursuant to Article 545 of the Turkish Civil Code, a person may, by way of an inheritance agreement, undertake to leave their estate or certain assets to another person. Unlike a will, an inheritance agreement is bilateral in nature and requires the participation and consent of the other party.
A will, on the other hand, is a unilateral testamentary disposition. Under Article 502 of the Turkish Civil Code, a person who has testamentary capacity may determine how their estate will be distributed after death, within the limits imposed by law.
Under Turkish law, wills may be made in three forms. An official will is prepared before an authorised officer, such as a notary public or a judge of the civil court of peace, in accordance with the testator’s instructions. A handwritten will must be written entirely by the testator/testatrix in their own handwriting and must include the date and signature. The testator/testatrix must have the required legal capacity for the will to be valid. An oral will is an exceptional form of will, used only in extraordinary circumstances where it is not possible to make an official or handwritten will, such as imminent danger of death, war, serious illness, interruption of communications or similar exceptional situations.
However, freedom of testamentary disposition is not unlimited under Turkish inheritance law. The Turkish Civil Code protects certain close relatives through the concept of the reserved portion. This principle restricts the testator’s ability to dispose freely of the entire estate and preserves a legally protected share for certain heirs.
The heirs entitled to a reserved portion are mainly the descendants, parents and surviving spouse. The reserved portion of descendants is one-half of their statutory inheritance share. For parents, the reserved portion is one-fourth of their statutory inheritance share. The reserved portion of the surviving spouse varies depending on the heirs with whom the spouse inherits. If the surviving spouse inherits together with descendants or parents of the deceased, the reserved portion corresponds to the entire statutory inheritance share. In other cases, the reserved portion is three-quarters of the statutory inheritance share.
It should be noted that brothers and sisters no longer have a reserved portion under current Turkish law. Therefore, although they may be statutory heirs in certain circumstances, they are not protected by the reserved portion rules.