Opening of a Will — Notarial Process and Legal Procedure

A will is a unilateral legal transaction that takes effect after the death of the testator and contains their last wishes and desires. The Turkish Civil Code No. 4721 regulates in detail the types of wills, formal requirements, and the procedure for opening wills. The opening of a will refers to the process of examining the will by the competent authority after the testator's death, determining its content, and notifying the relevant parties. In this article, we will comprehensively examine the process of opening a will, the role of the peace court judge, notification obligations, heirs' rights of objection, and practical issues.

Types of Wills and General Information

The TCC provides for three types of wills: official will, handwritten will, and oral will. The formal requirements and validity conditions for each are different. The procedure for opening a will applies to all wills regardless of type.

Official Will (TCC Art. 532-537): An official will is prepared in the presence of a notary or peace court judge together with two witnesses. The testator communicates their last wishes to the official; the official writes or has the will written, reads it to the testator, and the testator approves the will. It is then signed in the presence of two witnesses. An official will is a notarial transaction performed in arrangement form and has strong evidentiary value.

Handwritten Will (TCC Art. 538): A handwritten will becomes valid when the testator writes the entire will in their own handwriting, dates it, and signs it. There is no requirement for a notary or witnesses for this type of will. However, the storage of the handwritten will and its discovery after death is an important issue. Pursuant to Article 537 of the TCC, the will may be deposited with a notary or peace court judge for opening.

Oral Will (TCC Art. 539-541): An oral will is an exceptional type of will that can be made under extraordinary circumstances (imminent danger of death, interruption of transportation, epidemic disease, etc.). The testator communicates their last wishes orally to two witnesses, and the witnesses put these wishes in writing and sign them. The oral will loses its validity within one month from the time the testator obtains the possibility of making other types of wills.

Obligation to Deliver the Will

Pursuant to Article 595 of the TCC, anyone who finds or comes into possession of a will after the testator's death is obligated to immediately deliver it to the peace court judge. This obligation applies even if there are doubts about the validity of the will. The obligation to deliver the will applies to anyone who actually has the will in their possession, including notaries, lawyers, bank safe deposit box officials, or any third party.

A special provision exists for notaries. If an official will was prepared before a notary, the original is kept by the notary. A handwritten will may also have been deposited with a notary. In both cases, when the notary learns of the testator's death, they are obligated to send the will to the peace court judge. The Central Will Registry (ENÜS) established by the Union of Turkish Notaries ensures that wills are registered and can be easily found after the testator's death.

Persons who fail to fulfill the obligation to deliver the will may be held liable for damages arising from this failure. Additionally, concealing or destroying a will may constitute a criminal offense under the Turkish Criminal Code.

Procedure for Opening the Will

Articles 595-596 of the TCC regulate the procedure for opening a will. The will is opened by the peace court judge at the testator's last place of residence. The opening process consists of the following stages:

1. Will Reaching the Peace Court Judge: The will is sent to the peace court judge within the scope of the delivery obligation or ex officio by the notary. If a handwritten will was delivered in a sealed envelope, the envelope is opened by the peace court judge.

2. Opening Date and Invitation: Pursuant to Article 596 of the TCC, the peace court judge determines the opening date within one month from the date they received the will. Known heirs and other interested parties are invited to the opening date. This invitation is made through service of process.

3. Reading of the Will: On the determined date, the peace court judge opens and reads the will in the presence of those present. The opening and reading of the will is recorded in minutes. The attendance of heirs and other interested parties at this session is not mandatory; their failure to appear despite being invited does not prevent the opening process.

4. Preparation of Minutes: Minutes are prepared regarding the opening of the will. The minutes include the date of the will, a summary of its content, any formal deficiencies if present, and the statements of those present.

5. Notification to Interested Parties: Pursuant to Article 597 of the TCC, the peace court judge serves the portions of the will relevant to them upon the persons entitled to inheritance and upon persons in whose favor dispositions have been made by the will. This notification enables heirs and beneficiaries to learn of their rights and, if necessary, to object.

Role and Powers of the Peace Court Judge

The peace court judge plays a central role in the opening of a will. Pursuant to Article 596 of the TCC, the peace court judge is responsible for opening and reading the will, preparing minutes, and serving notice on interested parties. However, the peace court judge's authority at the stage of opening the will is limited to a formal examination of the will; the substantive law validity of the will is not evaluated at this stage.

During the opening of the will, the peace court judge determines the external appearance, signature, date, and formal elements of the will. If there are formal deficiencies in the will (for example, lack of date or signature), these are recorded in the minutes. However, the existence of formal deficiencies does not prevent the opening of the will; the opening is still carried out, and the formal deficiencies are recorded in the minutes.

Another important duty of the peace court judge at the stage of opening the will is to take estate protection measures when necessary. Pursuant to Articles 589-594 of the TCC, the peace court judge may take measures such as keeping an inventory, sealing, and estate administration for the protection of the estate.

Notification Obligation and Service of Process

Article 597 of the TCC regulates the notifications that must be made after the opening of the will. According to this article, the peace court judge serves the portions of the will relevant to them upon the following persons:

Legal Heirs: The relevant portions of the will are served upon the testator's legal heirs. Legal heirs have the opportunity to evaluate whether their reserved shares have been violated by the will.

Designated Heirs: Persons designated as heirs by the will are notified of this status.

Legatees: The relevant provisions of the will are served upon persons in whose favor specific bequests (legacies of specific assets) have been made.

Other Interested Parties: Necessary notifications are also made to other persons mentioned in or affected by the will.

Notifications are made pursuant to the provisions of the Notification Law No. 7201. If heirs are located abroad, international notification procedures are followed.

Heirs' Rights of Objection

After the opening of the will, heirs and other interested parties may object to the validity or content of the will. Rights of objection are examined under two main headings: will annulment lawsuit and reduction lawsuit.

Will Annulment Lawsuit (TCC Art. 557-559): Pursuant to Article 557 of the TCC, a will may be annulled in the following cases:

1. The testator did not have the capacity to make a will

2. The will was made as a result of mistake, fraud, intimidation, or coercion

3. The content, conditions, or charges of the will are contrary to law or morality

4. The will was made without complying with the formal requirements prescribed by law

The annulment lawsuit must be filed within one year from the date the plaintiff learned of the disposition, the ground for annulment, and their entitlement, and in any case within 10 years from the date of opening of the will, pursuant to Article 559 of the TCC. A 20-year period applies for persons acting in good faith.

Reduction Lawsuit (TCC Art. 560-571): A reduction lawsuit is a lawsuit in which the testator's reserved share heirs request the reduction of testamentary or inter vivos dispositions that violate their reserved shares to the reserved share ratio. Pursuant to Article 560 of the TCC, reserved share heirs may sue for the reduction of dispositions exceeding the portion over which the testator could freely dispose if they have not received their reserved shares.

The reduction lawsuit must be filed within one year from the date the heir learned that their reserved share was violated and in any case within 10 years from the date of opening of the will, pursuant to Article 571 of the TCC.

Role of the Notary in the Opening of Wills

Notaries play an important role in the process of opening wills. Since official wills are prepared before notaries, the original of the will is kept by the notary. The notary's main duties regarding wills are as follows:

Safekeeping of the Will: Pursuant to the Notary Law, the notary is obligated to keep the official will they have prepared. If a handwritten will has also been deposited with the notary, the notary safekeeps it securely.

Central Will Registry (ENÜS): Notaries register wills they have prepared or are safekeeping in the Central Will Registry (ENÜS) within the Union of Turkish Notaries. This registry ensures that the existence of a will can be easily determined after the testator's death. Civil registry offices forward death notifications to the union of notaries, and the death news of persons with will registrations is automatically reflected in the system.

Sending the Will to the Peace Court Judge: The notary who learns of the testator's death sends the will without delay to the peace court judge at the testator's last place of residence. This duty is the notary's legal obligation pursuant to Article 595 of the TCC.

Non-Disclosure of Will Content: As long as the testator is alive, the notary cannot disclose the content of the will to anyone. The professional secrecy provisions of the Notary Law apply in this regard.

Special Situations in the Opening of Wills

Some special situations may arise in the process of opening wills:

Existence of Multiple Wills: It is possible for the testator to have prepared multiple wills. In this case, all wills are delivered to the peace court judge and opened. A later-dated will implicitly revokes the earlier will with respect to conflicting portions (TCC Art. 544). However, non-conflicting portions retain their validity.

Will Cannot Be Found: If it is known that the testator made a will but the will cannot be found, heirs may apply to the court for the will to be searched for. The court can have the necessary investigations conducted to find the will. The ENÜS registration provides great convenience in this regard.

Will Is Torn or Damaged: If the will is partially or fully torn, worn, or damaged, the peace court judge determines the current state of the document and records it in the minutes. Whether the damage was intentionally done by the testator is evaluated; intentional tearing may be accepted as revocation of the will (TCC Art. 543).

Wills Made Abroad: The opening in Turkey of wills made in foreign countries is evaluated pursuant to the provisions of MÖHUK (Law on International Private Law and Procedural Law). The formal validity of the will is determined according to the law of the country where it was made; its substantive validity is determined according to the testator's national law.

Process After the Opening of the Will

The inheritance law process continues after the opening of the will. Opening is an initial stage that enables heirs and beneficiaries to learn of their rights. The following transactions may be carried out in the subsequent process:

Acceptance or Rejection of Inheritance: Pursuant to Articles 605-618 of the TCC, heirs may accept or reject the inheritance. Rejection of inheritance is carried out by declaration to the peace court judge within 3 months from the date the heirs learn that the inheritance has passed to them. Inheritance not rejected within the deadline is deemed accepted.

Keeping an Estate Inventory: Heirs may request the keeping of an inventory pursuant to Articles 619-631 of the TCC. Inventory keeping is a measure aimed at determining the assets and liabilities (debts) of the estate.

Execution of the Will: If the will contains specific bequests, charges, and conditions, the process of executing them begins. If an executor of the will has been appointed, this person ensures the implementation of the will.

Obtaining a Certificate of Inheritance: Heirs obtain a certificate of inheritance from a notary or peace court to exercise their inheritance rights. For heirs designated by will, a designated heir certificate must be obtained from the peace court.

Statutes of Limitation and Prescriptive Periods in the Opening of Wills

Various statutes of limitation and prescriptive periods exist in relation to the opening of wills:

Annulment Lawsuit Period: Pursuant to Article 559 of the TCC, the will annulment lawsuit must be filed within one year from the date the plaintiff learned of the disposition, the ground for annulment, and their entitlement, and in any case within 10 years from the date of opening of the will. A 20-year period applies for persons acting in good faith.

Reduction Lawsuit Period: Pursuant to Article 571 of the TCC, the reduction lawsuit must be filed within one year from the date the heir learned that their reserved share was violated and within 10 years from the date of opening of the will.

Inheritance Rejection Period: Pursuant to Article 606 of the TCC, legal and designated heirs may reject the inheritance within 3 months from the date they learned that the inheritance passed to them.

Frequently Asked Questions

Final note: This article has been prepared for general informational purposes and does not constitute legal advice. We recommend that you consult a lawyer for your specific legal issues.