Inheritance Contracts

Types of Inheritance Contract

a) Based on their content: Positive inheritance contracts - Negative inheritance contracts (inheritance renunciation contract)

With a positive inheritance contract, the legator makes a binding testamentary disposition in favor of the other party or a third party. In terms of their content, positive inheritance contracts are divided into three: (i) contract to appoint heir, (ii) contract to make a testament and (iii) inheritance contract in favor of a third party.^[4]

With a negative inheritance contract (inheritance renunciation contract), a possible and prospective heir waives the rights to the legator’s estate in favor of herself, for or without a valuable consideration.^[5]

b) Based on the number of parties: Unilateral – Bilateral inheritance contracts

This distinction is made according to the number of persons on whose estate the binding testamentary dispositions are made. In a unilateral inheritance contract, only one of the parties disposes of her estate. In such an agreement, the other party either accepts only the legator’s wishes or incurs an inter vivos debt.

Whereas in a bilateral inheritance contract, both parties make binding testamentary dispositions on their estates. It is important that the disposition made by both parties is binding. If the disposition made by one of the parties constitutes the non-binding content of the inheritance contract, the inheritance contract is still unilateral.^[6] The parties do not necessarily have to make a testamentary disposition in favor of each other. It is also possible to make a contract in favor of a third party.

c) Based on the status of consideration: Onerous - gratuitous inheritance contracts

In a gratuitous inheritance contract, while one of the parties makes a testamentary disposition, the other party merely accepts the legator's will and does not incur any inter vivos debt. 

On the other hand, in the case of a gratuitous inheritance contract, while one party makes a testamentary disposition, the other party also incurs an inter vivos debt. If it is an onerous inheritance renunciation contract, it is the legator who incurs an inter vivos debt.

Capacity to Conclude an Inheritance Contract

In terms of capacity, a separate examination is made for the one who makes a testamentary disposition with the inheritance contract and the other party who does not make a testamentary disposition.

a) Capacity of the person making a testamentary disposition

Pursuant to Art. 503 of the TCC, in order to conclude an inheritance contract, a person must have the ability to distinguish, be an adult and not be restricted. In other words, in order to conclude an inheritance contract, the person must have full legal capacity. That is to say, persons under guardianship and those restricted cannot make an inheritance contract. This is one of the points where the inheritance contract and the testament differ. While it is sufficient to have reached the age of fifteen and to have the ability to distinguish to make a testament (see Art. 502 of the TCC), it is not sufficient for an inheritance contract.

Moreover, since the execution of an inheritance contract is a strictly personal right, consensual or legal representation is not possible.^[7]

b) Capacity of the person who does not make a testamentary disposition

The legal scholars state that if the inheritance contract is bilateral, the provision of Art. 503 of the TCC applies to both parties. However, if the inheritance contract is unilateral, the other party is subject to the general rules of capacity.

Since there is no strictly personal right for the party who does not make a testamentary disposition, both legal and consensual representation may be considered.^[8]

Form Requirement

According to Art. 545 of the TCC, in order to be valid, an inheritance contract must be drawn up in the form of a formal testament. Certain scholars state that it is appropriate for the legislator to lay down strict form requirements in view of the fact that testamentary dispositions take effect after the death of the testator.^[9]

The conditions to be complied with in the official testament are set forth in Art. 532 et seq. of the TCC. However, since the inheritance contract is a bilateral testamentary disposition, as opposed to a testament, there are some differences in form. ^[10] Art. 545/2 of the TCC stipulates that "the parties to the contract must simultaneously inform the official of their wishes and sign the contract in the presence of the official and two witnesses".^[11]

Accordingly, the presence of the parties before the official at the same time and the need to sign in front of the witnesses appear as distinguishing form requirements.

In practice, the inheritance contract, like the testament, is generally executed before a notary public. However, the scholars state that what has been said applies to all officials authorized to issue official documents.^[12]

Termination of Inheritance Contract

Since the inheritance contract is a contract (a bilateral legal transaction), as a rule it cannot normally be terminated by a unilateral declaration of will. This is another difference between a testament and an inheritance contract; a testament can be freely revoked at any time until the moment of death. An inheritance contract, on the other hand, can only be terminated by the agreement of the parties or by a unilateral declaration of will only in the cases provided for by law.

Pursuant to Art. 546/2 of the TCC, the contract may be terminated in the event of one of the grounds for disinheritance or in the event of non-performance of the valuable consideration by the recipient of the inter vivos consideration pursuant to Art. 547 of the TCC.

Pursuant to Art. 546/1 of the TCC, the parties may always terminate the inheritance contract by written agreement.

On the other hand, an inheritance contract may also be revoked automatically as per the law, without any action being required. Such cases include the death of the person in whose favor the testamentary disposition was made before the testator, divorce, nullity of marriage, the existence of one of the grounds for disinheritance, the occurrence of disruptive or delaying condition and oral testament.^[13]

Lawsuits Arising from Inheritance Contract

Lawsuits arising out of inheritance contracts are governed by Art. 572 to 574 of the TCC. Accordingly, the possibility of filing a lawsuit is provided for in the event that the legator gives away her property during her lifetime and in the event of renunciation of inheritance. Nonetheless, it should be borne in mind that an action may be brought for the annulment of the inheritance contract, which is a testamentary disposition, in the presence of the reasons stipulated in Art. 557 of the TCC, and, in accordance with the provisions of Art. 560 et seq. of the TCC, for the compensation of the gain may be requested in the event of an infringement of the reserved shares.^[14]

Conclusion

In Turkish law, the inheritance contract, which is regulated among the types of testamentary dispositions in the formal sense, is a bilateral legal transaction due to its contractual nature and differs from the testament, which is a unilateral legal transaction. When concluding an inheritance contract, special attention should be paid to the regulations regarding the capacity to conclude a contract and the form requirements.