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I. Introduction
Today, human life is increasingly acquiring an international character. An individual may be born in Türkiye, receive education in Europe, pursue a career in the Middle East, make investments in different countries, and have family members dispersed across various parts of the world. In contrast, the law of inheritance is still largely regulated within the boundaries of national legal systems.
This situation may create significant legal uncertainty, particularly for individuals who have assets in more than one country or who hold multiple nationalities. Questions such as which country’s law will apply after the individual’s death, how the inheritance will be distributed, whether forced heirship rules will apply, or whether a will executed in one country will be recognized in another country often arise only after death and may lead to serious disputes among heirs.
At this point, the will is one of the most fundamental legal instruments through which an individual can determine the order to be applied to their estate after death, as well as shape family relations and economic planning. However, since individuals no longer have the opportunity to make decisions regarding the fate of their assets after their death, the validity of testamentary dispositions is of great importance. Especially in cases involving foreign elements, the execution of a valid will (or multiple wills) ceases to be merely a matter of preference and becomes an important necessity for ensuring legal certainty.
In Türkiye, the institution of the will is also regulated in detail under the Turkish Civil Code and grants individuals the opportunity to dispose of their assets after death. However, considering today’s global lifestyle, it is becoming increasingly important to evaluate the will not only within the framework of national law but also within the context of private international law rules and the interaction between different legal systems.
II. Inheritance System and Testamentary Dispositions under Turkish Law
Article 35 of the Constitution states that everyone has the right to property and inheritance, and the justification of the article emphasizes that the right to inheritance is a continuation and a specific form of the right to property. However, under the law of inheritance, a mixed system has been established regarding to whom the inheritance of the testator shall pass.
With respect to statutory succession, the “parental system” is applied under Turkish law. Accordingly, heirs are determined in three main groups. The first group consists of the descendants of the testator, namely children and grandchildren; the second group consists of the mother and father and their descendants; and the third group consists of the grandparents and their descendants. The surviving spouse becomes an heir alongside these groups, and their share varies depending on the group with which they inherit. If a person does not make any disposition regarding to whom their estate shall pass after death, their heirs shall be determined in accordance with statutory provisions.
However, under Turkish law, succession does not arise solely from the law. The testator may determine, in accordance with their own will, to whom their inheritance shall pass. The legal act that enables this is the testamentary disposition, and the authority to make testamentary dispositions is a power granted by the legislator to the testator in order to ensure the fulfillment of their final wishes prior to death, such as how and by whom their estate shall be used after death. A testamentary disposition may take the form of a will or an inheritance agreement. These legal transactions produce their effects and consequences after the death of the testator. Therefore, it is also possible for the testator to designate heirs through testamentary dispositions. Within this scope, the testator may designate a person other than the statutory heirs as an appointed heir or may stipulate that a specific asset or right be left to a particular person. The testator may dispose of the entirety or a part of their estate within the limits of the freedom of disposition. The portion over which the testator has not made any disposition shall pass to the statutory heirs.
However, one of the most distinctive features of Turkish inheritance law is the institution of the reserved portion. Indeed, the law has not left the testator’s freedom of disposition over their estate entirely unlimited; rather, it has placed the minimum shares of certain close heirs under protection. Within this system, the legislator has made a distinction among persons who may have rights in the inheritance and has granted heirs referred to as forced heirs the right to challenge dispositions that exceed the limits of the testator’s freedom of disposition. Certain heirs, particularly the descendants and the surviving spouse, have an inheritance right called the reserved portion, which cannot be eliminated by a will.
A will, under Turkish law, may be made in official form, in the handwriting of the testator, or orally. In practice, the most secure and most commonly preferred method is the official will, as its validity and evidentiary value are high due to the fulfillment of formal requirements within an official process. An official will is executed by an official (most commonly a notary public) in the presence of two witnesses. Since the official who executes the official will is obliged to keep the original of the will, risks such as loss of the document or subsequent tampering are largely eliminated. In addition, in practice, a medical report demonstrating that the testator has full capacity, referred to as a “mental capacity report,” is also requested to be obtained on the day the will is executed. In practice, upon death, it is recorded that there is an official will, and generally, in the presence of an official will, it is not permitted to obtain a certificate of inheritance from a notary public. In order to ensure the fulfillment of the deceased’s final wishes, and for the certificate of inheritance to be prepared by taking the will into account, the civil court of peace becomes competent in such cases.
Although a will is a document that produces legal consequences, it should not be regarded merely as a technical text. It is also a text that reflects the final intent and personal preferences of the testator regarding their estate after death. For this reason, the language and drafting of the will are of great importance. Indeed, the fundamental purpose in the law of inheritance is to reveal and implement, as far as possible, the true and final intent of the testator. In the event of a dispute, the judge, when interpreting the will, goes beyond the formal expressions and seeks to understand the intent of the testator and evaluates the text in a manner that will most accurately give effect to that intent. Therefore, it is important that the will is drafted in a clear, comprehensible manner without leaving room for contradiction; and that it includes an expression reflecting the thoughts and preferences of the testator, in order to prevent possible differences in interpretation in the future and to ensure that the intent of the testator is implemented correctly.
Therefore, when drafting a will, it is of great importance to take legal regulations into consideration, to correctly determine the portion over which the testator may dispose, to fully comply with the formal requirements, and to draft its content in a manner that clearly reflects the intent of the testator.
III. Inheritance Relations Involving a Foreign Element
In cases where there is a foreign element in the inheritance relationship; for example, where the testator has a different nationality or has assets in more than one country, the matter is not limited solely to the rules of national inheritance law; the rules of private international law and the possibility of the application of different legal systems also come into play.
The issue of which country’s law shall apply in inheritance relationships involving a foreign element is determined under Turkish law within the framework of the provisions of the Turkish Private International Law and Civil Procedure Act No. 5718 (“MÖHUK”). The fundamental rule of MÖHUK regarding inheritance is that inheritance is, as a rule, subject to the national law of the testator. Accordingly, the distribution of the inheritance, the determination of the heirs, and the principles regarding the transfer of the inheritance are generally assessed in accordance with the legal rules determined by the nationality of the testator. However, the law provides for an important exception with respect to immovable property. Accordingly, Turkish law shall apply to immovable properties located in Türkiye. Therefore, while the inheritance relating to all movables and immovables located abroad of a testator with foreign status is subject to their own national law, Turkish law shall apply to the immovable assets located in Türkiye.
However, where a foreign element exists, ensuring certainty is often not limited to a single legal system; with respect to assets located in different countries, each country’s own inheritance law and forced heirship rules, the formal requirements of the will, the applicable law rules, and the recognition or enforcement mechanisms that may be applied for a will to gain validity in another country may differ.
This means that a will duly executed in one country may not always automatically produce the same effects in another country. Therefore, where the testator has assets in more than one country, addressing inheritance planning solely within the framework of a single legal system is often not sufficient. This approach, which is increasingly preferred in international estate planning, involves the preparation of wills that are drafted in accordance with the relevant legal systems for assets located in different countries and that complement each other. Structuring these wills in a manner that does not invalidate one another, but rather complements each other, is of great importance in international estate planning. This approach aims to ensure that the intent of the testator is implemented in the most secure manner possible in situations where different legal systems may be applied simultaneously to the same inheritance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
