Inheritance Law in Turkey - Literature review Example

Inheritance Law in Turkey I. Introduction The legal system of Turkey has been assimilated into the system of the entire continent of Europe. Some examples of this assimilation are the incorporation of elements of the Civil Code of Switzerland, the Code of Obligations and the German Commercial Code. Features from the codes of these civilest countries have been borrowed and modified Turkish laws. Other instances are the similarities of the administrative law with its French counterpart and the borrowed provisions of the Turkish penal code with the corresponding counterpart in the Italian penal code. The legal system of Turkey recognizes and observes the principle of equality and non-discrimination among all peoples. No one may be discriminated vis-à-vis the laws on account of his or her race, language, religion, sex and so forth. Even as regards foreigners, their fundamental rights and liberties are limited only by law. Each individual enjoys the right to worship, religion, conscience and belief. Each person enjoys the right to defend himself/herself in the courts of law. The right to work for and conclude agreements shall be enjoyed by everybody in every conceivable area or field. The duty to pay taxes shall be imposed on every person. According to Turkish Citizenship Law, marriage to an alien does not change the citizenship of the husband. On the other hand, the female foreign spouse who marries a Turkish husband retains the right to elect her citizenship. However, there are certain exceptions like those persons who have no citizenship; the rule is that the foreigner shall automatically gain the Turkish citizenship due to the principle that any person should have at least one citizenship. For the wife who married a Turkish citizen, resignation from the other citizenship is not a legally possible condition. Laws of Turkey impliedly permit the wife to concurrently hold both citizenships. II. Sources of Law The main sources of the Law of Inheritance in Turkey are the Turkish Civil Code, the Law on Code of International Private and Procedure Law, and the Code of Civil Procedure. A. Highlights of the New Turkish Civil Code regarding Inheritance I. Amendments on gender equality One of the immediate promises found in the Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience and Religion) of the NPAA, was the commitment to “enact the Draft Turkish Civil Code embodying improvements in gender equality.” Article 186 (Former Article 152). – This is a new clause. The addition states that “the spouses will choose the house together”. Under the old provision found in former Article 152, the clause that “the husband is the head of the household” has been replaced with “the spouses shall manage the household together.” Likewise, the old provision found in former Article 152, stating that the expenses of the marriage are to be met by the husband, has been replaced with the new provision. The new provision states that “spouses shall contribute in labour and in property to the expenses of the marriage to the extent they are able to do so.” Article 188 (Former Articles 154 and 155). - A new provision has been introduced, which reads as “Both spouses may legally represent the marriage with respect to the expenses of the marital union for the duration of the marriage” and the provision in former Article 154, which reads as “the marriage is represented by the husband” has been removed. Article 189 (Former Articles 187, 202-204, 215-217). - A new provision stating that in all legal transactions on behalf of t marriage, the spouses shall have joint and several liability with respect to third persons. This amends the old provision wherein only the husband was liable for these obligations. Article 193. – This provision changes the rule governing the representation of the marriage found in former Article 154. Article 193 introduces the provision that “Either one of the spouses may undertake legal transactions with their spouses or with third persons unless otherwise is provided for in the law”. The old provision found in former Article 155, permitting the husband to represent the wife in legal transactions with third persons, is no longer in force. Under the changes in Article 193, either one of the spouses may undertake legal transactions with the other spouse or with third persons.   Article 202 and the following articles (former Article 170). – The old regime of “separation of property” provided under the former Article 170 has been changed to the new regime of “share in properties obtained”. The purpose and objective of these provisions is to correct the inequalities between spouses that have been observed as being the result of “the separation of property” regime in case of divorce. These provisions have been introduced to remedy injustices that may result from the enforcement of the former “separation of property” regime, which tended to be in favour of the husband. Article 268. - This is a new provision stating the amendment that “spouses are equally liable for debts related to the marriage.” Article 661 (Former Article 598). - With the amendment, the provision which provides that “in case none of the sons wish to manage the inherited business, the daughters with legal capacity may manage the inherited business” has been eliminated. Thus, the provision that was in favour of the sons in terms of the legal capacity to manage the inherited business is no longer in force. (emphasis supplied) II. Amendments introduced to protect the rights and privileges of the weak Under the Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience and Religion) of the NPAA., the following provisions have been introduced under the new Turkish Civil Code to protect the rights, privileges and interests of the weak. Article 199. - The new article places limitations on the right of the spouse filing for divorce to undertake legal transactions in order to prevent him or her from depriving the other of the property. This provision has been introduced in order to prevent the wife from being deprived of her right to alimony and other indemnities. Article 304 (former Article 304). - The amendment to Article 304 extends the rights of the mother vis-à-vis the father regarding the payment of the costs of pregnancy and childbirth to the mother filing a paternity suit against the father who does not recognize the child as his own. According to the amendment, even if the child is stillborn, the mother may demand the payment of expenses from the father or from his heirs. The duration of time in which the mother receives payment to meet daily expenses prior to and after childbirth has been extended to six weeks. Article 613 (former Article 553). - This provision introduces the amendment provision that in cases where all children and grandchildren refuse the inheritance, “the spouse that outlives his or her spouse may benefit from his or her share of the inheritance.” The old provision setting the period of time allowed for the exercise of this right has also been deleted. The effect of this provision is to increase the protection afforded to the surviving spouse. Article 652. - The amendment introduces the provision that if one of the spouses dies, and if the house or furniture used jointly by the spouses is part of the inheritance, then the surviving spouse may request that these be taken out of the inheritance so that he or she may continue to use them. This provision is also in favour of the surviving spouse. III. Amendments for the protection of the rights of the child Under Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience) of the NPAA, the new Civil Code of Turkey introduces new provisions significant to the protection and promotion of the rights of the child. Article 182 (former Article 148). – The phrase, as “the interests of the child in terms of health, education and morality” has been added to the provision governing the relationship of the child with the parent who is not in custody of the child, in cases of divorce or separation. Further, this amendment introduced a new provision permitting the judge to determine the costs of care and education to be met by the parent who does not hold the custody. Article 282 and the following articles. - The sub-heading “on the establishment of lineage” has been added to the second section beginning with Article 282. This amendment eliminates the discrimination between legitimate and illegitimate children. The effect of these new provisions is to make sure that illegitimate children are of the same legal status as legitimate children, with the end in mind of protecting the rights of the child. Article 292 (former Article 247). – This amends Article 292. The new provision states that as “upon the marriage of parents, the illegitimate child will be subject to the same provisions as applicable to legitimate children.” Such amendment helps in facilitating the exercise of the rights of the child from the perspective of both legal and administrative points of view. Article 330. - This article grants authority to the judge to adjust the sums of alimony, as changes occur with respect to the needs of the child or as the living standards of the mother and the father undergo changes. Article 332. - This article introduces the provision that the judge should consider and factor into his decisions and orders the best interests of the child in taking the necessary precautionary measures, when an alimony suit is commenced. Article 333. - The article introduces the concept of appropriating the sums of alimony while the case is pending, so that the judge may decide, even before the suit is finalized. The judge may now order that sufficient sums be appropriated to cover the needs of the child during a paternity suit filed against the father that refuses to recognize the child as his own if the judge decides that there is reasonable evidence in favour of paternity. Article 334. - The article introduces the provision that the judge will take the necessary measures if the mother and the father do not fulfil their obligations of alimony. Article 454 (former Article 397). - The amendment introduces provisions in favour of the child placed under guardianship. The provision that the child must be of “a minimum age of sixteen” in the former Article 397 on the inspection of accounts held by the guardian on behalf of the child placed under guardianship by a judge is no longer in force. In accordance with the provisions of the Convention on the Rights of the Child, the child is required to have the capacity to “form and articulate his or her views.” III. Discussion A. Salient Features of the New Civil Code of Turkey The fundamental principle governing jurisdiction over real property is lex rei sitae (i.e. that real property should be governed by the laws of the place where it is situated). Following this principle, the laws of Turkey are the laws which govern the ownership of real property situated inside the political, territorial, and geographic boundaries of Turkey. Thus, the rule is that immovable property of the decedent located in Turkey is covered by the laws of Turkey, while movable property is governed by the law of the nationality of the decedent. As a general rule, jurisdiction over inheritance issues is not affected by the religion or nationality of the decedent; but if the country of the citizen concerned does not reciprocate the protection granted by the laws of Turkey to such citizens who would inherit real property in Turkey, then the law mandates the devolution of the property, liquidating the real estate. There are instances when the law of the nationality of the foreigner provides that the law that would be applied in cases of inheritance is the law of Turkey. This scenario is known in private international law or conflicts of law as renvoi. In these instances, the rule is that the laws of Turkey are always applicable. As such, when a Turkish national who owns property abroad commences a suit within the Republic of Turkey, Turkish law would always be the law applied to inheritance issues. However, if the national commences suit in different country, the rules on conflicts of law of such country determines which law would be applied. Under Turkish Law, the Court of Peace and Court of First Instance are the courts that shall principally have jurisdiction and adjudicate cases involving inheritance issues. From experience, the duration to complete proceedings involving is difficult to predict. Completion of such proceedings normally depends on the complexity of the issues involved in the case and the caseload of the court. Under the Inheritance Laws of Turkey, close relatives divide among themselves the property and money bequeathed by a decedent pursuant to the pertinent provisions of the Civil Code. In legal terminology, persons who are conferred with such rights of inheritance are called heirs. Under the new Civil Code of Turkey, the first heirs of a deceased person are his children. In case the decedent left no descendants as successors, the father and the mother inherit. If the father and mother have pre-deceased the decedent, the children of the parents (siblings of the decedent) inherit. The least of a deceased person's heirs among his close relatives are his grandparents and their offspring. Should the decedent include his wife or husband with the children in the sharing of the inheritance, such wife or husband, as the case may be, inherit a fourth of the estate. On the other hand, a spouse who is shares the inheritance concurrently with the parents of the deceased father, mother, and their offspring has a right to half of it. A spouse who is sharing the inheritance with the parents of the deceased, and the decedent’s grandparents as well as their offspring has a right to inherit three-fourths of the estate. Should no one among the decedent’s next of kin survive, the whole estate is bequeathed to the surviving spouse. In the event that the decedent leaves no surviving heirs, his whole estate becomes the property of the State. The liability of an heir extends to and covers for all the debts and eligible for all the credits of the deceased person. Sometimes, the value of the estate is not enough to pay for the decedent’s obligations. In which case, the heir may choose to disclaim the inheritance by application to the court within three months of the death. Under the Civil Code of Turkey, statutory heirs and shares are specified in case the decedent left no will. In cases of intestacy, the entire estate is distributed between the heirs as follows: The first statutory heirs are the children of the deceased. In the absence of children, the parents of the deceased are the statutory heirs. If the parents are dead, the grandparents of the deceased and their offspring are the statutory heirs. If the spouse of the deceased is included with children in the sharing of the inheritance, then he/she has a statutory share of one-fourth. A spouse who is sharing the inheritance with the deceased's father, mother, and their offspring has a statutory share of one half. A spouse who is sharing the inheritance with the deceased's grandfather, grandmother, and their offspring has a statutory share of three-fourths. If none of the deceased's next of kin survives, the entire estate goes to the surviving spouse. If the deceased leaves no surviving heirs, the estate becomes the property of the State. There is a reserved portion in Turkish Law. A testator does not have absolute freedom to make testamentary dispositions as he or she pleases. The laws of Turkey impose restrictions on the exercise of this liberty to make testamentary dispositions. These restrictions serve the purpose of protecting the relatives of the testator. Such restrictions are embodies in what is called the reserved portion. The reserved portion is a proportion of the statutory share to which each statutory heir is entitled by intestate succession. Whether or not the reserved portion is applied to the estates of foreigners and members of different religions is defined above. A person is free to make testamentary dispositions in preparation of a will within the limits set by the Civil Code. Articles 452-453 of the civil Code guarantee a portion of the will as the rights of offspring, father and mother, brother and sister and surviving spouse. According to this, A) the reserved portion and legal inheritance right of offspring is 75% B) the reserved portion of inheritance for father and mother is 50%. C) The legal inheritance right for every brother and sister is 25%. D) If the surviving spouse shares inheritance in other situations but no with children, the reserved portion is 50% of the legal inheritance right. E) If the deceased person leaves some wealth to an association which is working for public benefit or to a foundation which has tax exemption, in those cases reserved portions are 2/3 of the amount mentioned above. In summary, under the Civil Code of Turkey, reserved portions are defined as follows: Children - 75% of the statutory share Father and Mother - 50% of the statutory share Brother and Sister - 25% of the statutory share Surviving spouse with no children - 50% of the statutory share Making a will is a very common practice in Turkey. Foreigners who wish to bequeath real property in Turkey should make a will in the form specified by the Turkish Civil Code. If the foreign will transmitting real property in Turkey does not comply with the laws of Turkey, it may be held invalid in Turkey. Full mental capacity to make a will and bequeath real property is a requirement for the validity of the will and of the testamentary provisions. The testator should be more than fifteen years old. In case the will was executed with error, fraud or duress, the will is considered invalid since these are vitiations of consent. There are three ways to execute a will – in official form, through the handwriting of the testator, or orally. The presence of a Notary Public or a Justice of the Peace is required in the execution of an official will and such execution should be done in accordance with certain formal conditions. It must be signed by two witnesses. A handwritten will is called a holograph. A holographic will should be written entirely in the testator's handwriting and must include the place, day, month, and year in which it was made the signature of the testator. A will prepared in this way is still required to be submitted to the court or a notary public for safekeeping. Limitations on the owner’s right to dispose of property during his/her lifetime. There are limitations of the right of the owner to dispose of the property to whomsoever the testator chooses to bequeath such property prior to his or her death. The reason for this that excesses by the testator in dispositions during his or her lifetime may pose problems later on in the event of his/her death. Under the Civil Code of Turkey, if the dispositions made in the testator’s will are in excess of the residual amount after the reserved portions, the dispositions made during the testator’s lifetime may be subject to reduction. Ownership of the real property is determined by the registration in the Title Deed Registry. Under the laws of Turkey, the ownership of the real property is determined by the name registered as owner and by the registration rights indicated in the Title Deed Registry. Related law concepts, such as possession, are likewise protected under specified conditions. Turkish law provides that children are qualified to inherit property. In case the child inherits real property, the mother and the father can manage the property for the child. This includes property belonging to the estate of said child. But the laws of Turkey require that the mother and the father should be legally married to each other. Alternatively, the laws of Turkey allow third parties to be appointed to manage the reserved portion of the estate bequeathed to the child as specified in the will. Should the child be not under the supervision of his/her mother and father (who must be married to each other as required by law) then it is required that a legal guardian should supervise the child. The contentions concerning guardians are mainly determined by law and. The appointment of guardians is issued upon lawful order of the court. B. Socio-economic Change as Rationale for the Amendments to the Turkish Civil Code The Turkish Grand National Assembly (TGNA) approved the new Civil Code of Turkey on November 27, 2001. The new Civil Code was promulgated by President Ahmet Necdet Sezer on December 08, 2001 and it was published in the Official Gazette on the same day. The new Civil Code consists of 1,030 articles. These rules and provisions cover important amendments to the family law and to the old Civil Code which was promulgated way back in 1926. However, the rationale explained by the then Justice Minister Mahmut Esat Bozkurt is retained in the new code. The enactment of the old Civil Code of Turkey in 1926 was in pursuit of the aspiration of Ataturk to raising Turkey to the level of the standards of modern Western civilization. Cognizant of the milieu during which the old Civil Code was formulated, the new Civil Code is definitely a revolutionary advance in legal development. The new Civil Code of Turkey performs the function of preventing the nation from descending into a judicial anarchy. This function is performed by compelling national uniformity and consistency throughout the Turkish legal system from what was previously a scattered set of varying legal rules, norms and practices. In addition, the new Civil Code institutionalized the guarantees to all Turkish citizens of their equality before the law, regardless of language, religion, race or gender. This principle of equality before the law sweeps away the traditions and conventions as well as legal impediments to the imposition of a completely just legal system. Finally, it advances the standing of Turkey’s women in society, by placing them in the same level as any other citizen.   However, since economic and technological developments almost always result in changes in conditions of life, the needs of society and the very nature itself of human relations result in laws lagging behind such changes. For this reason, it has become necessary to make periodic amendments and changes in laws to make them apace with and to adjust them to the changing times. These reasons impelled the Turkish Grand National Assembly to institute amendments to the Civil Code of Turkey.   C. Application for Accession to the European Union (EU) From the time of its application until the grant of its status as a candidate for membership in the European Union (EU) as part of the resolutions during the 1999 Helsinki Summit, Turkey has embarked on significant reforms in compliance with the EU-prescribed legal framework as required for admission to the Union (Tsarouhas 2007). These compliance requirements are known as acquis communautaire, or simply acquis). Constitutional reforms and legal amendments were introduced with increasing intensity since 1999 (Sozen and Shaw, 2003: 108), including a new Penal Code and a new Civil Code (Polat, 2006). Tsarouhas states that “while those have been welcomed by most EU Council members and wholeheartedly by the Commission, the fact remains that it is the implementation of laws that poses the greatest challenge for Turkey. IV. Special Problems in Turkish Law Starr and Pool (1966) examined the impact of a legal revolution in rural Turkey. By analyzing a portion (1950-1967) of the docket of a local district court located in Bodrum, Turkey, Starr and Pool examined the impact of introducing Western law codes and secular courts. The authors concede that court records alone cannot provide exhaustive answers to questions about legal change. However, the authors nevertheless arrived at the conclusion that suggestive patterns are apparent in the court docket. From these patterns, Starr and Pool inferred that certain relationships can be created. They claim that their data suggests that planned legal change over time does indeed affect populations and institutions at the local level. The impact of the inheritance law of Turkey in the rural areas can be characterized by the informal adjustments made in the form of the laws administered by the district town of Bodrum, and interpreted and enforced by the gendarmerie arrangement (Bodrum police). These legal norms and arrangements are sanctioned by village custom, for only when siblings cannot agree on land division do they turn to the court for an arbitrated decision (Starr and Pool 1966: p. 277). Pinar Ilkkaracan (1998) argues that “customary and religious laws and practices are often used as tools to control women's sexuality and to maintain the imbalance of power in sexual relations.” The paper entitled Women for Women's Human Rights, came up with descriptions of the customary and religious laws and beliefs and their impact on the situation of both rural and urban women in Eastern Turkey, based on a study among 599 women from the region, most of whom are or have been married. The study revealed that early marriage and polygyny are still prevalent. Among the findings are that marriages officiated by the religious often still precede civil marriage even though religious marriage is not legally binding. Also, the study found out that there are still instances of forced marriages and marriages by pre-arrangement remain a majority, but an increasing number of younger women now believed they are allowed to make the choice as to their partners. The study likewise discovered that majority of the women felt they cannot seek a divorce should they find out that their husbands were involved in relationships outside the marriage. In the same breath, however, a lot of women feared the custom of so-called honour killing if they are suspected of such an affair. Almost or practically none of the women ever attempted to seek legal recourse against domestic violence or marital rape, though these are commonly experienced. Some of the measures set up to address these issues were “a human rights training programme for women, a public awareness campaign against honour killings of women accused of adultery, and a campaign to alter the Turkish Criminal Code have been set up to address some of these issues” (Ilkkaracan 1998). V. References 1. Aktan, Resat (1966). Problems of Land Reform in Turkey, in Middle East Institute Journal; 2. Arun, Canan (1997). The Legal Status of Women in Turkey, in Women for Women’s Human Rights Reports No. 1; 3. "Inheritance Rights," COHRE (Centre on Housing Rights and Evictions), http://www.cohre.org/view_page.php?page_id=180, February 2007; 4. Ilkkaracan, Pinar and Women for Women's Human Rights (1998). Exploring the Context of Women's Sexuality in Eastern Turkey, in Reproductive Health Matters, Vol. 6, No. 12, Sexuality (Nov., 1998), pp. 66-75; 5. Polat, N. (2006). Identity Politics and the Domestic Context of Turkey’s European Union Accession, in Government and Opposition, 41 (4): 512-33; 6. Political Criteria Section 2.1.11 (Full Enjoyment by All Individuals without Any Discrimination and Irrespective of Their Language, Race, Colour, Sex, Political Opinion, Philosophical Belief or Religion of All Human Rights and Fundamental Freedoms; Freedom of Thought, Conscience and Religion) of the NPAA; 7. Sozen, S. and Shaw, I. (2003). Turkey and the European Union: Modernizing a Traditional State?, in Social Policy and Administration, 37 (2): 108-20; 8. Starr, June and Pool, Jonathan (1974). Impact of a Legal Revolution in Turkey; 9. Tsarouhas, Dimitris (2007). EU-Turkey Relations and Social Policy; 10. Yilmaz, Ihnsan. State, Law and Civil Society and Islam in Contemporary Turkey, in The Muslim World, Vol. 95, Issue 3, pp. 385-411 (published online 19 July 2005); Read More