How to Make a Will — Types, Validity Requirements and Annulment

A comprehensive legal guide to the types of will, the requirements for public, holograph and oral wills, the conditions of validity, the grounds of annulment and the annulment procedure.

What Is a Will and Why Does It Matter?

A will is a unilateral disposition upon death, revocable in the form laid down by the statute, made by the testator to take effect after their death. The testator disposes freely of the disposable portion; a disposition exceeding the reserved portion is not automatically void but may, where the conditions are met, be the subject of an action for abatement. The Civil Code provides for public, holograph and, in extraordinary circumstances, oral wills. The consequence of a defect of form is likewise assessed, as a rule, within the framework of the annulment action in art. 557 and the following articles of the Civil Code.

What Capacity Is Required to Make a Will?

Under art. 502 of the Civil Code, to make a will a person must have the capacity of discernment and have completed the age of fifteen. These two conditions are the capacity requirements necessary for the validity of a will. Capacity of discernment means a person's ability to grasp the meaning and consequences of the act they perform. Wills made by persons who have not completed the age of fifteen, or who lack the capacity of discernment, are invalid and may be the subject of an annulment action.

Capacity must exist at the moment the will is made; a subsequent loss of the capacity of discernment does not automatically invalidate a disposition validly made earlier. Advanced age or illness is not on its own incapacity. A medical record close to the date of the will may be strong evidence; the absence of a report does not automatically invalidate the will either.

A special rule applies to persons under guardianship. Under art. 502 of the Civil Code, persons subject to a restriction of capacity may also make a will if they have the capacity of discernment. In that case the guardian's approval is not required, because making a will is a right strictly personal in nature and cannot be exercised by the guardian.

How Is a Public Will Made and What Are Its Formal Requirements?

A public will is the type of will made, under arts. 532-536 of the Civil Code, before a public officer (a notary, a magistrate or another official authorised by law) with the participation of two witnesses. In practice the public will is regarded as the most reliable type of will and is preferred because it makes proof easier.

A public will is made as follows: the testator communicates their wishes to the public officer. The officer writes down or has written down the testator's statements and gives the document to the testator to read. After reading it, the testator declares that it accords with their wishes. They then date and sign the will. The public officer also dates and signs the document.

Under art. 536 of the Civil Code, the following persons may not act as witnesses: those without capacity to act, those disqualified from public service, the illiterate, the testator's spouse, blood relatives in the ascending and descending lines, their siblings and the spouses of these persons. This restriction is intended to prevent a will from being made under pressure or influence. It is not compulsory to disclose the content of the will to the witnesses; the witnesses confirm only that the testator made their statements of their own free will and appeared to have capacity.

Where the testator cannot read or sign the will personally, the special procedure in art. 535 of the Civil Code applies. The public officer reads the will to the testator in the presence of two witnesses; the testator declares that it contains their last wishes. The witnesses then write, or have written, on the document that the declaration was made in their presence and that they considered the testator capable of making the disposition, and sign beneath it.

How Is a Holograph Will Prepared?

A holograph will is the type of will, under art. 538 of the Civil Code, that the testator writes in their own handwriting from beginning to end and dates and signs. This is the most practical form of will because it requires no public authority and no witnesses. Full compliance with the formal requirements is, however, mandatory; otherwise the will may be annulled.

A holograph will has three basic formal requirements. First, the will must be written in the testator's own handwriting from beginning to end. Wills written with a typewriter, a computer printer or any other mechanical means are not valid as holograph wills. Second, the will must bear the date on which it was made (year, month and day). The absence of a date, or an incomplete date, may lead to the annulment of the will. Third, the testator must sign the will. The signature must appear at the end of the will.

A holograph will may be written in any language. There is no restriction as to the type of paper, the colour of ink or the style of writing. The will must, however, be legible. After it has been made, a holograph will may be deposited with a notary or a magistrate, although this is not compulsory. Depositing it for safekeeping with a notary or a magistrate is recommended because it removes the risk of the will being lost or destroyed.

The problems most frequently encountered with holograph wills in practice are: the absence of a date, the will being written in someone else's handwriting, the absence of a signature, and uncertainty as to the content. Any one of these may be a sufficient ground for annulment.

When Is an Oral Will Valid?

Where a public or holograph will cannot be made because of an extraordinary situation such as imminent danger of death, the severing of communications, illness or war, the testator may relate their last wishes to two witnesses and instruct them to record those wishes. The witnesses write down the statement without delay, sign it stating the place and date, and deliver it to the competent magistrates' court or court of first instance, or have it recorded orally by the judge. The statutory capacity to act as a witness and the special procedure for those in military service are reserved.

If the testator subsequently gains the opportunity to use one of the other forms of will, the oral will ceases to have effect one month after that opportunity arises. It is incorrect to say that an oral will remains valid indefinitely after the extraordinary situation has ended.

How Do the Types of Will Compare?

The table below compares the basic features of the three types of will. In choosing a type of will, reliability, practicality and the circumstances should be taken into account.

How Does an Inheritance Contract Differ from a Will?

An inheritance contract, regulated in arts. 545-549 of the Civil Code, is, unlike a will, a bilateral disposition upon death. It is an agreement between the testator and the other party that must be made in the form of a public will and cannot be revoked unilaterally. In this respect it differs fundamentally from a will.

Under art. 545 of the Civil Code, to make an inheritance contract a person must have the capacity of discernment and be of full age. Unlike the age of fifteen required for a will, an inheritance contract requires full capacity to act. Persons subject to a restriction of capacity cannot make one. An inheritance contract must be made in the form of a public will, that is, before a public officer and two witnesses.

An inheritance contract may take two forms: a positive and a negative inheritance contract. In a positive inheritance contract the testator undertakes to leave the estate or particular property to the other party or to a third person. In a negative inheritance contract the heir renounces their inheritance (a contract of renunciation, Civil Code art. 528).

The termination of an inheritance contract is regulated in arts. 546-548 of the Civil Code. The parties may set the contract aside at any time by written agreement. Where the person appointed as heir or as legatee engages, after the inheritance contract, in conduct towards the testator constituting a ground for disinheritance, the testator may set the contract aside unilaterally in one of the forms laid down in the statute. If an inter vivos obligation under the contract is not performed or secured, rescission under the rules of the law of obligations may also come into play.

On What Grounds May the Annulment of a Will Be Sought?

Under art. 557 of the Civil Code, the grounds of annulment are: incapacity at the time of the disposition; mistake, fraud, duress or coercion; the content or conditions of the disposition being contrary to law or morality; and failure to comply with the statutory form. The fact that a will was drawn up before a notary does not of itself dispose of questions of capacity, defective intention or the reserved portion.

A will is not automatically treated as void because of a defect of form or of capacity; an heir or legatee with an interest brings an annulment action. As a rule, a judgment of annulment takes effect between the parties to the action. Abatement, for a valid disposition exceeding the reserved portion, is different from annulment of the disposition.

Annulment differs from a will's infringement of the reserved portion. Incapacity, mistake, fraud, duress or coercion, content contrary to law or morality, and a defect of form may be grounds of annulment under art. 557 of the Civil Code. An infringement of the reserved portion, by contrast, leaves the disposition valid but results in abatement. Whether the claims may be pleaded in the alternative in the same case is assessed according to the concrete legal interest.

How Is an Annulment Action Brought and What Is the Time Limit?

The annulment action is brought by an heir or legatee having an interest in the annulment of the disposition, against those who benefit from it. The competent court is the civil court of first instance, and the court of the testator's last place of residence has exclusive venue.

The right of action lapses one year after the date on which the claimant learned of the disposition, the ground of annulment and their own entitlement. In any event there is an outer limit, running from the opening of the will, of ten years against a defendant acting in good faith and twenty years against one not acting in good faith. The defence of invalidity may be raised at any time.

Capacity is assessed as at the moment of the act. Advanced age or a diagnosis is not on its own proof of incapacity; medical records, witnesses, the circumstances of the act and, where necessary, an expert report are examined together. A report from the Forensic Medicine Institute is not required in every case.

A claimant seeking the annulment of a will proves the incapacity, defect of intention, unlawfulness or defect of form relied on. Medical records, documents close to the date of the act, witnesses and expert examination may be used; the admissibility of each item of evidence is governed by the rules of the Code of Civil Procedure on evidence and lawfulness.

A judgment of annulment prevents the annulled disposition upon death from taking effect from the moment the succession opened. Nevertheless the annulment action is a constitutive action taking effect between the parties; it should not be said that the judgment binds all interested persons unconditionally, including those who did not take part in the proceedings. The validity of the remaining dispositions and of any earlier will is examined separately.

How Is a Will Revoked and a New One Made?

Under arts. 542-544 of the Civil Code, the testator may freely revoke their will at any time. Revocation may be effected by making a new will, by destroying the will, or by subsequent dispositions containing provisions inconsistent with the earlier will. This flexibility follows from the character of a will as a unilateral legal act.

Where revocation is effected by a new will, the later will must expressly set aside the earlier one or contain provisions inconsistent with it. Where the later will contains inconsistent provisions, the earlier will is deemed revoked as regards those provisions; the provisions that are not inconsistent remain valid.

The testator may also revoke a will by destroying it. If the document is destroyed by accident or through the fault of a third party and its content cannot be established fully and definitively, the will has no effect; the right to claim damages is reserved. In the case of a public will, the copies held in safekeeping and the scope of the intention to destroy are assessed separately; it should not be assumed that destroying only the copy in the testator's possession invalidates the official record in every case.

What Should Be Borne in Mind When Making a Will?

When making a will it is very important to observe the rules on the reserved portion, to comply fully with the formal requirements, to document the position as to capacity, and to write the will in clear and comprehensible language. Failure to attend to these matters may lead to the annulment of the will or to its being unenforceable.

The proportions of the reserved portion are set out in arts. 505-506 of the Civil Code. For descendants the reserved portion is one half of the statutory share; for the mother and father, one quarter of the statutory share; for the surviving spouse, where they inherit together with descendants or with the parental line, the whole of the statutory share, and in other cases three quarters of the statutory share. Where a will makes dispositions exceeding these proportions, the heirs whose reserved portion is infringed may bring an action for abatement.

In practice the following steps are recommended when preparing a will: first, a full inventory of the estate should be drawn up. The statutory heirs and the proportions of the reserved portion must be identified. It is important that the will be written in clear and precise terms leaving no room for doubt. If a public will is preferred, a notary should be approached; if a holograph will is preferred, it must be written entirely by hand and dated and signed. Finally, taking advice from a legal professional will secure the will's legal validity.

It is also possible to appoint a substitute heir or a subsequent heir in a will (Civil Code arts. 520-521). The appointment of a substitute heir ensures that the estate passes to the substitute if the principal heir predeceases the testator or renounces the inheritance. Where a subsequent heir is appointed, the estate passes first to the provisional heir and devolves on the subsequent heir when a specified condition is fulfilled.

This content is for general information and does not constitute legal advice.

Official sources: Turkish Civil Code no. 4721, Notaries Law no. 1512, Code of Civil Procedure no. 6100