INHERITANCE UNVEILED: DECODING THE LAST WILL AND TESTAMENT

HOW TO WRITE A LAST WILL AND TESTAMENT?

Making a last will and testament is subject to very strict form requirements. To answer how to write a will; first of all, it is necessary for the person to have the mental capacity to make a last will and testament. If there is no explicit or implicit declaration of will, it means that there is no will.

After the legator has declared their last will and testament, it is necessary to check whether the conditions set by the legislator have been met for the validity of the will. Even if the legator has made a declaration of will, if the will does not meet the formal requirements of the law, the declaration of will is deemed invalid and the will does not take effect.

TYPES OF LAST WILL AND TESTAMENT IN TURKISH LAW

Articles 532, 538, and 539 of the Turkish Civil Code regulate the answer of how to write a will; it can only be made in three ways:

• Handwritten will

A handwritten will is the simplest and easiest way for the legator to explain their wishes. It allows the legator to reveal their last wishes easily. However, a handwritten last will and testament cannot be made in a simple written form. The law requires a qualified written form. This means that the last will and testament must be handwritten, have a clear date, and be signed by the legator’s own handwriting.

Making a last will completely handwritten is a prerequisite for identifying whether the will was made by the person or not. Not only the content of the will but also the date of issue and signature must be handwritten.

Additionally, although it is not required by law, in practice, if the will consists of more than one page, an internal link is sought between the pages. The numbering of the page and the signature on each page are the most important elements that prove the internal link. Additions, drawings, and scratchings made by third parties to the will are invalid and may invalidate the entire last will and testament. In this case, the court may decide the invalidity of the entire will as a result of an examination by an expert.

A handwritten will can be left open or closed to a notary, magistrate, or authorized officer, or it can be kept on its own. In any case, regardless of whether the will is valid or not, it must be delivered to the magistrate by the person who found the will immediately.

• Official Will

The official will constitutes stronger proof than a handwritten last will and testament. It is more clearly formulated and made with the participation of two witnesses before a notary public, magistrate, or authorized officer.

Those who lack capacity to act, are banned from public service, are illiterate, or are the spouse, descendants, relatives, siblings, or spouses of the inheritor, cannot serve as witnesses in the preparation of an official will.

In the preparation of the official last will and testament, the conditions of the main form and the secondary form must be complied with. The official last will preparation process is as follows:

1. A will is drawn up by the official in accordance with the last wishes of the legator.
2. The legator reads and signs the will.
3. The last will and testament is dated and signed by the official.
4. It is declared that the legator reads the will without interruption, against two witnesses before the official, and the text is in accordance with his last wishes.
5. The last will and testament is signed by the witnesses and kept by the notary public.

• Verbal Will

The legislator has decreed that an oral will can be applied in exceptional cases only, such as in situations where it is not possible to make the other two types of wills, for example, during danger of death, interruption of transportation, illness, or war. The emergency must exist at the time the oral will is made.

There are two phases in an oral will. In the first phase, the testator declares his last wishes verbally and in front of two witnesses present at the same time. These two witnesses must not be among those who will be affected by the will. In addition, the prohibitions regarding the witnesses in the official will are also valid in the oral will.

The second phase concerns the witnesses. They do not have to fulfill the duty assigned to them by the testator. If they accept, they either write the last wishes declared to them on a document stating the place and date, and give this document to the nearest magistrate or first instance court without delay, or apply to the court and submit the last wishes stated to them, and send it to the judge.

An oral last will and testament has no validity period. However, if the legator has an opportunity to make a will in other ways later, the verbal will remains valid for one month from the emergence of this opportunity. In the event that the one-month period expires, the verbal will automatically becomes void.

SOME SPECIAL SITUATIONS IN THE PREPARATION OF WILLS

Condition of the Visually Impaired:

In legal doctrine, it is deemed obligatory for visually impaired individuals to prepare their last will in the form of an illiterate will, as it is not possible for them to compare the Braille text with the text written by the official.

Condition of the Deaf and Dumb

Deaf and dumb individuals who can read and write may prepare their will in the form of an official will. An illiterate testator must prepare their will without reading and signing the document.

Situation of Those Who Do Not Speak Turkish

Testators who do not speak Turkish may prepare their will through an interpreter.

Keeping the Last Will and Testament

Official wills are kept by notaries, who notify the civil registration office that they possess a will.

WITHDRAWAL, COMPLETION, CHANGE AND OPENING OF WILL

Since the last will and testament is formed by a unilateral declaration of will, the legator may change or complete their will at any time until it is completed. Once the will is completed, the testator may still make changes, but must sign and date the amended text and ensure that it complies with the will in its entirety.

Moreover, the legator may withdraw the will at any time. By creating a new will, the testator may revoke and destroy the previous will. If the legator completely changes their previous last will and testament, they must explicitly state in the new will that the previous will is entirely invalid.

Otherwise, the texts of both wills will be compared to investigate any implied conversion while opening of will. The revocation of a will is not necessarily subject to the form of the original will. A formal will may be revoked by a handwritten will.

INVALIDITY OF THE WILL

When examining inheritance provisions, two types of invalidity related to death-related dispositions can be found, which can be disabled with absence and nullity, although they are not frequently encountered, except for cancellation and invalidation as per the law. In these cases, the last will and testament is not valid from the beginning.

• Non-existence

If the person does not have the willpower to make a will, there is no founding element in the transaction. For example, if a third person has made a will instead of the legator, or the testator later gave up on making a will, a determination case can be opened to determine the situation for opening of will.

• Absolute Nullity

The will can be crippled with absolute nullity in cases such as failure to obtain a result despite using all kinds of ways of interpretation of the content of the will, the testator’s disregard for the form conditions, and the realization of the content of the disposition is not possible.

• Spontaneous subsequent invalidation as required by law

Although the testament is valid at the time it is made, it may later become invalid due to the law. For example, reasons such as the decedent’s revocation of the earlier will by a savings transaction, the absence of the delaying condition, or the disappearance of the basis of the transaction can render the will invalid.

CASES FOR CANCELLATION OF THE WILL

The reasons for the annulment of the will are listed in four clauses in Article 557 of the Turkish Civil Code:

• Incapacity

The person making the will must have the power of discernment and must have completed the age of 15.

• Disorder of willpower

Testaments made under the influence of error, deception, intimidation, or coercion are void.

• The content of the will is against the law and morality

If the content of a last will and testament or the conditions and burdens attached to the disposition are against the law and morality, the last will and testament is invalid by annulment. The moral and legal rules at the time of the disposition are taken into account when evaluating the morality and illegality.

• Formal defect

If the will does not meet the form requirements listed in the law, this is a reason for annulment. The lack of shape usually occurs in handwritten wills. This lackness creates a legal problem opening of will.

REVOCATION OF WILL LAWSUIT

The will only becomes invalid with an action for annulment, and existing deficiencies do not automatically invalidate it. The action for annulment of the will can be filed by the heir or beneficiary of the will, who has an interest in its annulment. The plaintiff must file an action for annulment within one year of learning the reason for annulment, the existence of the will, and that they are the rightful owner. This period typically begins to run from the date from opening of will.

Additionally, the right to file a lawsuit against benevolent defendants is lost after 10 years, and 20 years against non-benevolent defendants from the opening of the last will and testament. The competent court is the court of the last settlement of the legator, which is the Civil Court of First Instance. The case of annulment of the will is an innovative case, and with this case, the court is asked to cancel the will. If the decision is made, the will is canceled retroactively.

STATUS OF WILLS MADE BY FOREIGNERS AND WILL ENFORCEMENT

Wills drawn up by foreigners who are not Turkish citizens in accordance with the legislation in their own country are valid in Turkey. However, these wills must be requested will enforcement in Turkey.

Additionally, wills drawn up by the foreign executor in accordance with the national law are valid in Turkey. In this case, Turkish courts decide by investigating the national law of the deceased in accordance with the rules of International Private Law for will enforcement. The important thing for will enforcement in this regard is that the testament should not contain a regulation contrary to the imperative provisions and morality of Turkish law.

If a foreigner draws up a handwritten will at a notary public in their country, these wills must be opened and requested will enforcement in Turkey after opening of will in the competent court in the foreigner’s country. If a foreigner wishes to make a will in the presence of a foreign notary public or in handwriting, the will should not contain regulations contrary to Turkish Law in order to ensure the validity of the will, and it should be in a content that is in accordance with both national law and Turkish law.

In practice, wills drawn up by Turkish citizens living in abroad are frequently encountered. Whether the testator has property in Turkey or not, the validity of the will is decided according to whether it is in accordance with national law and Turkish law for will enforcement. For this reason, a person who wants to make a will in abroad should get legal support from both Turkish and German will lawyers.

WHAT TO CONSIDER WHEN MAKING A WILL

Making a last will and testament is an important legal process that determines how a person’s assets will be distributed after their death. Some of the things to consider when making a will are:

• Acting with a firm and healthy mind: Make sure you are acting with a firm and healthy mind before starting the process of making a last will and testament. This is extremely important to create a valid will that will not be legally challenged.
• Following legal procedures: You should make a last will and testament in accordance with the legal procedures set out in the Turkish Civil Code. Completing these procedures fully ensures the legal validity of your will and able to will enforcement.
• Identifying the heirs: Decide who the heirs will be in your last will and testament. In addition to legal heirs, you can also identify other people as heirs.
• Preparing a detailed list of assets: You need to specify what your assets are in your last will and testament. Make a list of all your assets such as real estate, vehicles, bank accounts, stocks, cash, etc., and specify them in detail.
• Preparing a detailed plan for distributing the inheritance: Prepare a plan for how your assets will be distributed. Be careful and detailed when preparing this plan.
• Making the will clear and understandable: The language you use in your will must be clear and understandable. Otherwise, it may be difficult for your heirs to interpret your will correctly.
• Storing the will in a safe place: Store your will in a safe place and don’t forget to update it. Also, don’t forget to inform your heirs where your will is and how to access it.
• Getting legal assistance: Making a last will is a sensitive process, and a wrong step can affect the legal validity of the will. Therefore, it is extremely important to get legal assistance to make a will that is legally valid from a will lawyer.

THE IMPORTANCE OF SEEKING LEGAL ASSISTANCE WHILE PREPARING A WILL FROM A WILL LAWYER

The preparation of a will is subject to very strict formal requirements set forth by the law. The will should be made in accordance with the finest details specified by the legislator. Otherwise, the will can be invalidated by the heirs or other relevant parties by filing a lawsuit. In the event of the will being invalidated, the legal heirs will inherit the estate. The absence of formal requirements is taken into account by the judge ex officio, and the will is canceled.

There are valid reasons why the legislator strictly links the preparation of a will to formal requirements. In this way, the legislator aims to prevent a last will and testament from being made hastily without careful consideration.

Because a hasty decision regarding inheritance can result in irreparable consequences for the estate of the testator. Furthermore, formal requirements prevent the destruction of the will and make it possible to determine the real intention of the testator.

Therefore, it is crucial to seek legal assistance before preparing a will. An invalid will can directly affect the estate’s financial situation, and the failure to fulfill the testator’s last wishes due to the invalidation of a will that does not comply with formal requirements can also cause emotional harm.

It is essential to seek legal assistance from a will lawyer before preparing a handwritten or official will to prepare a will in accordance with the law and the testator’s wishes. A minor mistake or oversight during the preparation of a will can have significant consequences.

In addition to compliance with formal requirements, the legal requirements for the validity of a will should also be taken into account during the preparation of the last will. Therefore, seeking legal assistance from a will lawyer during the will preparation process is of great importance.

With the support of experts such as will lawyers or legal advisors, the legal requirements are fully met during the preparation of the will, and the details that will ensure the creation of an unimpaired will are not overlooked.

Furthermore, in the event of the will being invalidated, disputes and legal proceedings among the heirs are likely to occur. This situation can result in harmful consequences both financially and emotionally. Therefore, seeking legal assistance during the will preparation process ensures the peace of mind and security of both the heirs and the testator.

Another issue to be careful about during the will preparation process is reflecting the true intention of the testator. To ensure the validity of the will, the testator must clearly express their intention. Therefore, seeking legal assistance from a will lawyer to prepare the will will result in a will that reflects the testator’s real intention, minimizing the risk of invalidation.

In conclusion, seeking legal assistance from a will lawyer during the last will preparation process is crucial to prevent possible legal problems in the inheritance process and ensure the validity of the will. It is recommended to take into account the relevant legal requirements, reflect the testator’s true intention, and seek legal assistance for security during the legal proceedings.