Will

In Turkish law, a will is a unilateral legal act containing the testator’s final wishes and arrangements regarding the disposition of their estate, to be carried out after their death. Testamentary dispositions, which express the testator’s intent, are referred to as formal testamentary acts according to the formal requirements prescribed by law. The Turkish Civil Code (TCC) limits the types of formal testamentary acts to a closed number (numerus clausus), namely the will and the inheritance contract. Wills are unilateral legal acts that can always be freely revoked by the testator until their death.

The law regulates three types of wills: official will, handwritten will, and oral will as an exceptional form. A will not executed in accordance with one of these prescribed forms may be annulled on the grounds of noncompliance with the formal requirements set out in the law.

An official will is a type of will drawn up by a notary, a peace judge, or another public official authorized by law, with the participation of two witnesses. It is considered the most commonly used and most secure form of will in practice. The procedure for its execution may vary depending on the testator’s circumstances.

In this method, the testator communicates their final wishes to the public official. The official writes or dictates the text and then gives it to the testator to read. The testator signs the document after confirming that the text accurately reflects their final wishes. Immediately thereafter, the public official dates and signs the will. Shortly after these steps, the testator declares before the two witnesses that they have read the document and that it contains their final wishes. The witnesses then sign the will, attesting in writing or by dictation that the declaration was made in their presence and that they consider the testator competent to make such a disposition. In this method, it is not mandatory for the witnesses to be informed of the content of the will.

When the testator is unable to read or sign the will themselves, the public official reads the prepared text aloud to the testator in the presence of two witnesses. The testator then declares before the witnesses that the will contains their final wishes. In this case, the witnesses sign the will, attesting in writing or by dictation that the declaration was made in their presence, that they consider the testator competent to make such a disposition, and that the will was read aloud to the testator by the official and contains their final wishes. Individuals who are literate may also choose this method.

A handwritten will is a type of will that allows the testator to express their intent with fewer formalities. To be valid, it must satisfy three essential conditions:

1. Entirely in Handwriting: The entire text of the will, including the date, must be written entirely in the testator’s own handwriting. Any part of the text written by a third party or by mechanical means such as a typewriter or computer renders the will invalid.
2. Date: The year, month, and day on which the will was made must be clearly indicated. The date must be written in the testator’s own handwriting. The presence of the date is essential to determine the testator’s capacity at the time of execution and to establish which of multiple wills was made later.
3. Signature: The testator’s signature must appear at the end of the text. The signature identifies the testator and confirms that the document is complete and that the testator approves its contents.

A handwritten will may be left with a notary, a peace judge, or another authorized official, either sealed or unsealed, for safekeeping.

An oral will is an exceptional form of will permitted by law only under extraordinary circumstances. It may be used when the testator is prevented from making an official or handwritten will due to imminent danger of death, interruption of communication, illness, or war.

The validity process for an oral will consists of two stages:

1. Statement of Final Wishes: The testator communicates their final wishes to two witnesses and instructs them to write or have written a will reflecting those wishes.
2. Documentation: The witnesses immediately record the testator’s final wishes, including the place, year, month, and day, in a written document. Both witnesses sign the document and promptly submit it to a peace or civil court. At the court, they also declare that they consider the testator competent to make a will and that the testator communicated their final wishes to them under extraordinary circumstances. Alternatively, they may choose to appear directly before the court and have their statements recorded in an official protocol instead of preparing a written document.

The most important legal characteristic of an oral will is its temporary nature. If the testator later gains the opportunity to make a will in another form—official or handwritten—the oral will automatically becomes void one month after the date of such opportunity.

For a will to be legally valid, the testator must be competent and the will must be executed in strict compliance with the formal requirements prescribed by law.

According to the Turkish Civil Code, a person is competent to make a will if they possess the capacity to discern and have reached the age of fifteen. Persons under legal restriction may also make a will if they meet these conditions. This right is strictly personal to the individual and cannot be exercised through a legal representative.

A claim for annulment of a testamentary disposition may be based on various grounds. According to Article 557 of the TCC, a will may be challenged in court under the following circumstances:

• Lack of Capacity: The disposition was made when the testator lacked testamentary capacity.
• Defect of Will: The disposition was made as a result of mistake, fraud, duress, or coercion. However, if the testator does not rescind the disposition within one year after becoming aware of the defect or after the coercive circumstance has ceased, the will remains valid.
• Contrary to Law or Morality: The content of the disposition, the conditions attached, or the obligations imposed are contrary to law or public morality.
• Formal Defect: The disposition was not executed in accordance with the formal requirements prescribed by law.

An action for annulment may be brought by an heir or a beneficiary named in the will who has a legal interest in its annulment. The right to bring such an action expires one year after the claimant becomes aware of the disposition, the ground for annulment, and their own status as a claimant; in any event, it expires ten years after the opening of the will against good faith defendants and twenty years against bad faith defendants. However, invalidity may always be raised as a defense.