Action for Abatement — Infringement of the Reserved Portion and the Procedure

Comprehensive legal information on what an action for abatement is, the proportions of the reserved portion, the dispositions subject to abatement, the order of abatement, the time limits and the method of calculation.

What Is an Action for Abatement and Why Is It Brought?

An action for abatement is an inheritance-law action that brings the deceased's dispositions upon death or inter vivos benefits infringing the reserved portions back within the statutory limits. Regulated in articles 560 to 571 of Turkish Civil Code no. 4721, it protects the inheritance rights of heirs entitled to a reserved portion. In legal usage “tenkis” means “reduction” or “abatement”, and denotes the recovery of that part of the deceased's benefits exceeding their power of disposition which encroaches on the reserved portion.

The action for abatement is one of the most important protective mechanisms in the Turkish law of succession. The deceased does not have an unlimited power of disposition over their property; the legislature has introduced the reserved portion in order to protect certain heirs. Dispositions exceeding these limits are not absolutely void, but the heirs whose reserved portion is infringed have the right to bring an action for abatement. Unless such an action is brought, the disposition remains valid.

What Are the Proportions of the Reserved Portion and Which Heirs Are Entitled?

Under Civil Code arts. 505-506, the heirs entitled to a reserved portion are the descendants, the mother and father, and the surviving spouse. Siblings have no reserved portion. The reserved portion is found by applying the following proportion to the statutory share calculated first:

• For each descendant, one half of the statutory share.
• For each of the mother and father, one quarter of the statutory share.
• Where the surviving spouse inherits together with descendants or with the parental line, the whole of the statutory share.
• For the surviving spouse in other cases, three quarters of the statutory share. The situation where the spouse is the sole heir and that where they inherit together with the third line do not produce the same statutory share calculation. The family tree and the statutory share must be established first, and the proportion of the reserved portion applied afterwards.

How Is the Disposable Portion Calculated?

The disposable portion is the net value of which the deceased may dispose freely without infringing the reserved portions. Within the framework of Civil Code arts. 507-512, the assets and liabilities of the estate are determined; the disposable amount is found by deducting the total of the reserved portions from the net value of the estate. The “rate of disposition” is the ratio of that amount to the net estate.

In calculating the estate, all the deceased's property at the moment of death is taken into account. In addition, certain inter vivos benefits listed in Civil Code arts. 565-567 are added to the estate (benefits subject to abatement). The net estate is found by deducting the estate's liabilities (debts). Deducting the total of the reserved portions from the net estate gives the disposable portion.

The inter vivos benefits to be added to the abatement calculation are listed in Civil Code art. 565 in exhaustive categories. They are: benefits conferred on a statutory heir on account of their share of the estate as specified in that article; benefits conferred with a view to settling inheritance rights before death; gifts made within the year preceding death other than customary presents; and benefits whose purpose of defeating the rules on the reserved portion is manifest.

Which Dispositions Are Subject to Abatement?

The dispositions subject to abatement are the deceased's dispositions upon death (wills and inheritance contracts) and the inter vivos benefits listed in Civil Code art. 565. Every disposition upon death exceeding the reserved portions is subject to abatement; for inter vivos benefits, abatement is possible only in the cases exhaustively listed in the statute.

As regards dispositions upon death, a legacy of particular property under a will, the appointment of an heir, charges and the establishment of a foundation may be subject to abatement. Benefits conferred by an inheritance contract may likewise be abated. What matters is that these dispositions infringe the reserved portion; dispositions that do not are not subject to abatement.

Not all inter vivos benefits are subject to abatement. Whether a benefit falls within a category in Civil Code art. 565 is assessed by establishing, on the concrete evidence, to whom, for what purpose and on what date it was conferred, whether it was on account of a share of the estate, whether there was genuine consideration, and whether the purpose was to defeat the reserved portion.

How Is the Order of Abatement Determined?

Under Civil Code art. 570, abatement is made first from dispositions upon death until the reserved portion is made up; if that is not sufficient, it is made from inter vivos benefits, working back from the most recent to the earliest. This order is laid down by the statute as mandatory and cannot be altered by agreement between the parties.

The reason for this order is to protect, so far as possible, the acquired rights of those who received inter vivos benefits. Where the deceased has infringed the reserved portion by dispositions upon death, those dispositions are abated first. Abatement among dispositions upon death is proportionate: each beneficiary is affected in proportion to the benefit received.

If the abatement of dispositions upon death is not sufficient, inter vivos benefits are reached. Among these, abatement starts with the most recent benefit and works backwards. This order rests on the view that those who received earlier benefits have a stronger expectation.

Dispositions upon death and inter vivos benefits made to public legal persons and to associations and foundations serving the public benefit are abated last, under the special rule in Civil Code art. 570.

Who May Bring an Action for Abatement and Against Whom?

Under Civil Code art. 560, an action for abatement may be brought by an heir whose reserved portion has been impaired. The heir's creditors or the bankruptcy administration may exercise this right only on the special conditions in Civil Code art. 562. The action is directed against the person who benefits from the disposition subject to abatement or, where the conditions are met, their successor. The right to bring the action is a personal right and may be exercised only by the heir whose reserved portion is infringed. For the heir's creditors to bring an action, the heir must be unable to pay their debts and must have failed to bring proceedings despite being given notice (Civil Code art. 562). In that case the creditors may bring the action in the heir's name.

The competent court in an action for abatement is the civil court of first instance, and the court of the deceased's last place of residence has exclusive venue. Proof is governed by the Code of Civil Procedure according to the nature of the allegation; in particular the type of benefit, the debts of the estate and the valuation dates may require official records and expert examination.

What Is the Time Limit for Bringing an Action for Abatement?

The right to bring an action for abatement lapses one year after the impairment of the reserved portion comes to the claimant's knowledge and, in any event, ten years after the opening of a will or, for other dispositions, after the succession opened. Where the annulment of one disposition has brought an earlier one into effect, the period begins when the judgment of annulment becomes final.

These are forfeiture periods. The defence of abatement, by contrast, may be raised at any time. Knowledge requires not merely awareness of the existence of the disposition but also that it impairs the reserved portion, together with facts sufficient to exercise the right of action; the starting point is established on the concrete evidence.

The start of the one-year period depends on the person entitled to a reserved portion learning both that their reserved portion has been infringed and of the disposition that infringes it. Learning of the death alone is not sufficient; the existence and extent of the infringing disposition must also be known. In practice the start of this period is fixed by events such as the opening of the will, the heirs obtaining a certificate of inheritance, or the drawing up of an inventory of the estate.

How Is the Abatement Calculation Made?

From the value of the property at the moment the succession opened are deducted the deceased's debts, funeral expenses, the costs of sealing and taking an inventory of the estate, and three months' living expenses of those living with the deceased. Benefits subject to hotchpot and to abatement are added to the calculation under the statutory rules; the net estate, the reserved portions and the disposable portion are then established.

Although the structure of the estate at the date of death is the basis, the Civil Code's special valuation provisions apply to the return of the property forming the subject of the benefit, the right of election in respect of indivisible property, and changes in value up to the date of judgment. It is not correct to apply a single market date to all items.

The order of abatement is as a rule dispositions upon death first, then inter vivos benefits working back from the most recent. A special order applies to benefits conferred for the public good. For indivisible property, the beneficiary's right of election and the balance payable are calculated separately.

In an abatement calculation the net value of the estate is determined first, then the reserved portions are calculated, and the part exceeding the rate of disposition is identified in order to find the amount to be abated. The abatement calculation is one of the most technical topics in the law of succession, and complete identification of the estate's assets and liabilities is of great importance for an accurate calculation.

What Is the Settled Approach of the Higher Courts in Abatement Cases?

In an action for abatement, the estate and debts at the date of death and the benefits subject to hotchpot or abatement are established first; the reserved portion, the disposable portion and the extent of the infringement are then calculated. Proof and valuation are carried out according to the nature of each item of property and each benefit.

Where it is alleged that a transaction was a sale in appearance but in reality a gift, the legal grounds and conditions of a claim for cancellation of the title deed and re-registration based on the deceased's simulated transaction differ from those of a claim for abatement. The claimant may plead in the alternative; in characterising the facts in law the court is bound by the relief sought. It should not be said that in every file the two routes are freely interchangeable equivalents.

Abatement in respect of indivisible property is governed by the rules on election and valuation in Civil Code art. 564. Where the conditions are met, the beneficiary may either pay the value of the disposable portion and ask that the property be transferred to them, or claim the sum corresponding to the value of the part subject to abatement. Whether the outcome is return in kind or payment of value is determined by the concrete calculation and the election made.

What Should Be Borne in Mind When Bringing an Action for Abatement?

The claimant is the heir entitled to a reserved portion or, on the statutory conditions, their creditors or the bankruptcy administration; the defendant is the person benefiting from the disposition subject to abatement or their successor. The competent court is the civil court of first instance and the court of the deceased's last place of residence has exclusive venue. A pure claim for abatement is generally not subject to mediation as a condition of proceedings. However, if the same file contains a claim for the distribution of estate property, for the dissolution of joint ownership, or another claim subject to mediation, the claims must be assessed separately.

The value of the claim is determined by reference to the interest for which abatement is sought, and any shortfall in court fees may be made good in accordance with the procedure. Because fee rates change with the tariff published each year, the current tariff in force at the date of the claim must be taken as the basis. Simulated transactions by the deceased, hotchpot and abatement are different institutions; alternative claims may be pleaded according to the facts.

Official sources: Turkish Civil Code no. 4721, Code of Civil Procedure no. 6100, Law no. 6325 on Mediation in Civil Disputes