An action for reduction is a type of lawsuit filed in cases where certain dispositions made by the de cujus during their lifetime or by a will violate the legal rights of heirs with a reserved share in the inheritance. Turkish Civil Code’This lawsuit, governed by Articles 560 et seq. of the Turkish Civil Code (TMK), aims to remedy the violation of the reserved portion and ensure that the heir receives their rightful share.
Legal Nature of the Action for the Removal of Interference
An action for reduction, a probate lawsuit It is in the nature of. That is to say, it is aimed for the heir to obtain their right by having the dispositions made by the deceased reduced at certain rates. For this reason, Court of Cassation practices have also evaluated the reduction lawsuit directly as an action for performance (Code of Civil Procedure art. 105).
Reserved Share in Inheritance and Who Are the Forced Heirs?
The reserved portion (statutory share) is the share of the inheritance over which the testator cannot freely dispose.
Reserved share heirs:
- Issue (children, grandchildren): 1/2 of the statutory inheritance share is the forced portion.
- Mother and father: 1/4 of the statutory inheritance share.
- Surviving spouse: depending on the circumstances, the entire statutory inheritance share or three-quarters of it is determined as the reserved portion.
Brothers, cousins ve third-degree heirs is not a reserved portion heir.
Conditions of the Reduction Action
Under Article 560 of the Turkish Civil Code (TMK), the bringing of an action for reduction requires the existence of two conditions:
- The testator exceeding their disposable portion through inter vivos or post-mortem dispositions,
- The reserved portion heir suffering loss for this reason.
When determining the value of the estate:
- Debts and expenses (funeral costs, sealing, maintenance expenses) are calculated without being included in the estate.
- Dispositions subject to balancing and reduction, along with certain donations (e.g. life insurance), are added back to the estate.
Bringing Prosperity to Tenkis
Travel perks for the official:
- of dispositions upon death the whole thing,
- From inter-branch transfers only those listed in Article 561 of the TMK:
- Donations made in lieu of an inheritance share,
- Exceptional trousseau and start-up capital,
- Waiver agreements regarding the liquidation of inheritance rights,
- Donations made within the year before death.
Dispositions Without Tax Concession
- Customary gifts given on occasions (e.g. wedding gifts),
- The fulfilment of moral duties,
- Donations made more than a year ago (unless the testator has expressly reserved the right of revocation),
- Transfers made to a spouse pursuant to property regime provisions.
Parties and Competent Court in Reduction Lawsuits
- Claimant: Reserved share heirs, under certain conditions, the creditors of these persons or bankruptcy administrations.
- Defendant: Beneficiaries.
- Competent Court: Court of First Instance.
- Jurisdiction: It is the court of the deceased's last place of residence. (CCP art. 11)
Time Limit for Filing an Action for Reduction (Statute of Limitations)
Turkish Civil Code art. 571 pursuant to:
- from the date of learning that the reserved portion has been infringed 1 year,
- from the date of opening in wills, and from the opening of the inheritance in other dispositions 10 years the right of action is extinguished by the lapse of time.
- These periods limitation period is of the nature of.
Annulment of a Will and Reduction Action
If dispositions made by a will violate the reserved portion, an action for reduction can be brought directly, either together with the annulment of the will or without annulment. Not the entire will, but only the part exceeding the reserved portion is reduced.
Right of Plea of Reduction
Reserved share heirs, in order to prevent the performance of dispositions subject to reduction, plea of weather can put forward. However, the plea can only be used before performance takes place. Otherwise, a reduction lawsuit must be filed.
Tenki Method
In accordance with Article 570 of the Turkish Civil Code (TMK):
- First, dispositions upon death,
- If that's not enough, transfer payments between reserves (from the newest date to the oldest),
- Recent public donations are subject to reduction.
Liability for Restitution and Malicious Beneficiaries
SCC s.995 where necessary:
- Well-meaning individuals, only returns what is left in their hand.
- Malicious individuals, is liable to return all earnings and products.
What is the difference between an action for reduction and an action for asset smuggling from inheritance (collusion of the ancestor)?
With a reduction action claim for deprivation of inheritance through fraudulent transfer of property, are two different legal remedies aimed at protecting the reserved portions of heirs. While a reduction action (tenkis davası) is filed when the deceased's outright donations impair the reserved portion, a collusive transaction by the deceased (muris muvazaası) action is filed when the deceased disguises a gift as a sale and evades inheritance from the heirs. Both actions aim to remedy the victimisation of the heirs, but their legal grounds and consequences differ. In practice, these actions may sometimes be brought in a complementary manner.
Result
The reduction lawsuit is of great importance in terms of ensuring fair sharing in inheritance. The protection of the legal rights of compulsory heirs is possible both through a lawsuit and a defence. However, since these rights are subject to limitation periods, heirs must act carefully from the opening of the inheritance and, if necessary, professional legal support should take.
