Opening of a Will — The Notarial Process and Legal Procedure

We explain in detail the process of opening a will under TMK Arts. 595-597, the procedure for opening by the civil judge of peace, the duty to notify and the heirs' rights of challenge.

A will is a unilateral legal act containing the testator's final wishes and taking effect after their death. The Turkish Civil Code No. 4721 governs in detail the types of will, their formal requirements and the procedure for opening a will. The opening of a will refers to the process by which, after the testator's death, the will is examined by the competent authority, its content established and notified to those concerned. This article deals comprehensively with the process of opening a will, the role of the civil judge of peace, the duty to notify, the heirs' rights of challenge and the problems in practice.

Types of Will and General Information

Under the Civil Code a will may be made in official form, in the testator's own hand, or, in extraordinary circumstances, orally. An official will is drawn up with the participation of a competent officer and two witnesses. The ordinary procedure where the testator can read and sign is governed by TMK Arts. 533–534; the procedure specific to a person unable to read or sign by Arts. 535–537. A holograph will must be written throughout in the testator's own hand, dated with the year, month and day, and signed; it may be deposited, open or sealed, with a notary, a civil judge of peace or a competent officer for safekeeping (TMK Art. 538).

The Duty to Deliver a Will

After the testator's death, a person holding a will is obliged to deliver it to the civil judge of peace without delay, irrespective of whether it is valid. Liability may arise for loss caused by failure to deliver it. As regards official wills and dispositions upon death, the records kept by the Union of Turkish Notaries are used in the relevant notarial and court procedures after notification of the death.

The Procedure for Opening a Will

A will is opened by the civil judge of peace at the testator's place of residence within one month of its delivery and read to those concerned. Known heirs and other interested persons are summoned; their non-attendance does not prevent the procedure. At this stage the judge does not give a final ruling on the substantive validity of the will; the opening of the document and its notification to those concerned does not predetermine the outcome of an action for annulment or abatement.

The Role and Powers of the Civil Judge of Peace

The civil judge of peace plays a central role in the opening of a will. Under TMK Art. 596 the judge opens the will, reads it to those concerned and records the procedure in the minutes; under Art. 597 the judge serves on those concerned the parts relating to them. As part of the opening, the outward appearance of the document and its existing formal elements are established; this non-contentious procedure does not constitute a final ruling on the substantive or formal validity of the will.

In opening the will the judge establishes its outward appearance, signature, date and formal elements. If there are formal deficiencies (a missing date or signature, for example), these are recorded in the minutes. The existence of formal deficiencies does not prevent the will from being opened; the opening still takes place and the deficiencies are recorded.

Another important function of the judge at the opening stage is to take measures in respect of the estate where necessary. Under TMK Arts. 589-594 the judge may take measures such as the taking of an inventory, sealing and administration of the estate.

The Duty to Notify and Service

TMK Art. 597 governs the notifications to be made after a will is opened. Under it the civil judge of peace serves the parts of the will relating to them on the following persons:

Statutory heirs: the parts relating to them are served on the testator's statutory heirs.
Appointed heirs: the provisions relating to them are notified to persons appointed as heirs by the disposition.
Legatees: the provisions relating to them are served on persons to whom specific property has been left.
Other interested persons: the necessary notification is made to other interested persons whose rights or obligations are affected by the disposition.

Notifications are made under Service Law No. 7201. Where heirs are abroad, the international service procedures are followed.

Heirs' Rights of Challenge

Incapacity, defect of intent, content contrary to law or morality and defect of form are grounds of annulment under TMK Art. 557. In an action for annulment the one-year period does not run merely from the date the will was opened; it runs from the date on which the claimant learned of the disposition, of the ground of annulment and of their own entitlement. The action must be brought within, in any event, ten years from the date the will was opened against defendants in good faith and twenty years against those in bad faith (TMK Art. 559). Claims for abatement are subject to the separate periods in TMK Art. 571.

The Notary's Role in the Opening of a Will

A notary who draws up an official will or receives a holograph will for safekeeping keeps the document and carries out the statutory registration and notification procedures relating to dispositions upon death. The notary's principal functions are as follows:

Safekeeping: keeping the official will drawn up, or the holograph will delivered for safekeeping.
Registration and notification: carrying out the statutory registration and notification procedures relating to the disposition upon death.
Transmission to the judge: upon learning of the testator's death, transmitting the disposition held without delay to the competent civil judge of peace (TMK Art. 595).
Confidentiality: protecting the content of the document during the testator's lifetime under the provisions on notarial confidentiality.

Special Situations

Where there is more than one will, under TMK Art. 544 a later disposition replaces the earlier one unless it is clear beyond doubt that it supplements it. The approach that “only the conflicting part is revoked in every case” is not correct.

For dispositions upon death with a foreign element, MÖHUK Art. 20 and the international conventions to which Türkiye is a party concerning the form of testamentary dispositions apply. A one-sentence formula tying form solely to the law of the country where it was made and substantive validity solely to national law is not sufficient. For immovables, the testator's national law, the law at the time of the disposition and the conventions are examined together.

The Process After a Will Is Opened

An appointed heir or legatee may request from the civil court of peace a certificate of inheritance or a document relating to the execution of the will; rights of objection and of action are reserved. The period for a statutory heir to renounce the inheritance runs from the date of death unless they prove that they learned of their status as heir later; for an appointed heir, from the date the disposition was officially notified to them (TMK Art. 606). The opening of the will is not a single, invariable starting point for all heirs.

Limitation and Forfeiture Periods

No limitation period is prescribed for the opening of a will; if the document comes to light after the death it must still be delivered to the judge. However, for annulment of a will the periods of one year from knowledge and, from the opening, ten years against a defendant in good faith and twenty against one in bad faith apply; for abatement, TMK Art. 571; and for renunciation of the inheritance, TMK Art. 606. For a legacy claim and claims against the estate, the limitation period specific to the nature of the claim is examined separately.

Frequently Asked Questions

When is a will opened?

Within one month of its delivery to the judge.

Does the judge who opens the will rule definitively on its validity?

No. The opening is not a final ruling on substantive validity.

When does the one-year period for an annulment action begin?

On the date the claimant learned of the disposition, of the ground of annulment and of their entitlement.

May a holograph will be deposited with a notary?

Yes; under TMK Art. 538 it may be deposited for safekeeping with a notary, a civil judge of peace or a competent officer.

Does a later will revoke only the conflicting part?

The rule is that it replaces the earlier one unless it is clear beyond doubt that it supplements it.