WHAT IS A WILL, AND WHO CAN DRAFT ONE?

I. INTRODUCTION

The distribution of an individual’s estate following death need not be left solely to statutory inheritance rules. The Turkish Civil Code allows individuals, within statutory boundaries, to express their intent post-mortem. The most common tool is the testament or will (vasiyetname). Testators may allocate assets, appoint heirs, disinherit, establish foundations, or impose obligations. However, testamentary freedom must observe capacity, formal requirements, and reserved share rights of mandatory heirs.

II. LEGAL NATURE OF A WILL

A will is a unilateral post-mortem disposition executed during lifetime but taking legal effect upon death. Regulated in TCC Articles 502 et seq., it requires no acceptance by beneficiaries. It differs fundamentally from inheritance contracts (miras sözleşmesi), which require mutual consent; a will is established solely by the testator’s single-handed intent and can generally be revoked or amended at any time.

Making a will is a strictly personal right (kişiye sıkı sıkıya bağlı hak). It must be executed personally by the testator; representatives, attorneys, or guardians cannot draft a will on their behalf. Testators may disinherit, appoint heirs, leave specific legacies, impose conditions/obligations, appoint substitute heirs, or order foundation establishment.

III. REQUIREMENTS FOR DRAFTING A WILL: WHO CAN DRAFT ONE?

Under TCC Art. 502, two cumulative capacity conditions are required at execution:

1. Capacity of Discernment (Ayırt Etme Gücü): The ability to comprehend the meaning and consequences of actions and make uncoerced choices. (Medical reports are routinely requested by notaries for elderly testators or illness cases).
2. Minimum Age of 15: Persons under 15 cannot make a will even with discernment or parental/guardian consent.

Because drafting a will is strictly personal, another person cannot draft a will on behalf of an eligible individual.

IV. TYPES OF WILLS

The TCC specifies three exclusive statutory forms for wills:

A. Public/Official Will (Resmî Vasiyetname) Regulated in TCC Art. 532 et seq., this is the most common form with the highest evidentiary weight. It is executed before an official (notary, civil judge) in the presence of two witnesses.

• Ordinary Procedure: The testator states final wishes to the official, reads the drafted text, signs it, and witnesses sign their declarations.
• Special Procedure (Art. 535): For illiterate, visually impaired, or incapacitated individuals, the text is read aloud to the testator before witnesses, who certify the testator’s reading, approval, and legal capacity.
• Disqualifications (Art. 536): Incapacitated persons, convicts, illiterate persons, spouses, lineal relatives, siblings, and their spouses cannot act as official witnesses or officials, nor receive dispositions thereunder.

B. Holographic Will (El Yazılı Vasiyetname) Regulated in TCC Art. 538, this requires the testator to write the entire text, date, and signature entirely by hand. Typed or printed documents are void for lack of form. No notary or witness is required. It can be kept privately or deposited with a notary or court.

C. Nuncupative / Oral Will (Sözlü Vasiyetname) An exceptional form (TCC Arts. 539-541) allowed only during extraordinary circumstances (imminent danger of death, war, isolation, severe illness) preventing official or holographic execution. The testator orally states wishes to two witnesses, who immediately record and sign the statement for submission to court. An oral will automatically lapses one month after extraordinary conditions cease if the testator gains capacity to execute an official/holographic will.

V. TESTAMENTARY DISPOSITIONS AND RESERVED SHARE LIMITS

Testators can appoint heirs, allocate legacies, set division rules, appoint executors, or disinherit non-reserved heirs. However, freedom is limited by reserved shares (saklı pay).

The law protects specific close relatives (issue, parents, surviving spouse). Dispositions exceeding the disposable margin do not make the will automatically void; injured reserved heirs must file a Reduction Lawsuit (Tenkis Davası) to scale back dispositions to statutory limits.

VI. REVOCATION OF A WILL

A will does not bind the testator during life and can be revoked at any time by:

1. Executing a new post-mortem disposition.
2. Destroying the original document (tearing, burning).
3. Inter vivos disposal of the bequeathed property (e.g., selling the property).

Sent warning letters (ihtarname) reflecting intent to revoke do not legally revoke a prior will unless executed in statutory testamentary form.

VII. OPENING, ANNULMENT, AND EXECUTION OF A WILL

Upon death, every discovered will must be submitted immediately to the magistrate court (Sulh Hukuk Mahkemesi), which opens and reads it to interested parties within one month.

• Annulment Lawsuit (İptal Davası – TCC Art. 557): Filed in First Instance Civil Courts on restricted grounds (lack of capacity, duress/fraud, illegality/immorality, formal defects). Peremptory periods (TCC Art. 559) are 1 year from discovery and maximum 10 years (20 years against bad-faith defendants) from opening.
• Execution (Tenfiz): Follows when no objections exist, transferring assets, registering deeds, or collecting claims.

VIII. CONCLUSION

A valid will requires strict adherence to legal capacity, formal statutory types, and reserved share balance to prevent post-mortem litigation.

IX. COURT OF CASSATION DECISIONS

1. Exhaustive Grounds for Annulment: Court of Cassation 3rd Civil Chamber, E. 2015/17339, K. 2017/4333 (30.03.2017) — Grounds under TCC Art. 557 are exhaustive (tahdidi).
2. Witness Declarations for Illiterate Testators: Court of Cassation 3rd Civil Chamber, E. 2015/4647, K. 2016/2487 (24.02.2016) — Witnesses must explicitly sign that the text was read aloud to the illiterate testator in their presence and approved.
3. Medical Capacity Evidence Requirement: Court of Cassation 3rd Civil Chamber, E. 2015/18917, K. 2016/412 (20.01.2016) — Medical records around execution date must be collected and submitted to the Forensic Medicine Institute (Adli Tıp) for capacity determination.
4. Notary Warning Letter Not a Will Revocation: Court of Cassation 3rd Civil Chamber, E. 2015/6890, K. 2015/10407 (08.06.2015) — A notary warning letter (ihtarname) does not meet statutory testamentary forms and cannot revoke a prior valid will.

IMPORTANCE OF AN ATTORNEY

Drafting a will is a complex legal procedure. Legal assistance ensures compliance with formal requirements, prevents future annulment or reduction lawsuits, and guarantees accurate representation of the testator’s true intent.