ENTRANCE
Inheritance law is a branch of private law that regulates the transfer of assets after death and
how they are inherited. This field balances both the individual’s right to dispose of property
upon death and the legal rights of heirs. However, conflicts sometimes arise between these
two values. One of the most typical examples of this conflict is the phenomenon known as
“testament collusion.”
“Collision of the deceased” is a disposition based on a different will, concealed behind an apparent
legal transaction, made by the deceased to disinherit one or more of his or her heirs, in other
words, to indirectly reduce their shares in the inheritance. Transactions that appear to be real
estate sales or contracts for the care of the deceased, but are actually donations, are generally
considered within this scope. In such cases, a discrepancy arises between the apparent transaction
and the deceased’s true will, creating a special type of what is defined as collusion in Turkish law.
The collusion of deceased persons is a multifaceted legal problem that intersects not only
inheritance law but also obligations and property law. Such transactions can violate heirs’ reserved
rights and undermine the principles of accuracy and trust in land registry records. In practice, the
intense influence of emotional, social, and economic factors, particularly in family relationships,
makes these cases both legally and practically complex.
Cases based on the collusion of a deceased are among the most common inheritance disputes in practice.
Disputes arising between heirs after the deceased’s death, particularly when it comes to properties of high
economic value, often materialize in such cases. Indeed, according to Supreme Court decisions, a large
number of transactions depicted on the land registry as “sale” or “death support contracts” are actually
aimed at creating instability among the deceased’s heirs. Therefore, cases involving the cancellation and
registration of deeds based on the collusion of a deceased are a matter with widespread social and
economic repercussions.
1-) What is the Collusion of the Testator?
“Collective decedentship” is a transaction in which a testator, with the intention of effectively depriving their heirs of
their right to inherit or reducing their share of the estate, engages in a transaction disguised as a formal transaction but
actually based on a different will. While this transaction may appear to involve a sale or other formal disposition, the
true intentions of the parties differ; the testator is actually making a donation or shifting the inheritance share in favor
of another heir.
2-) Legal Nature of Collusion
Collusion can be generally defined as “the execution of a legal transaction with an apparent, but actually different,
content.” In this context, collusion can be divided into two broad groups: general collusion (e.g., Article 18/19 of the
Turkish Code of Obligations) and special/inheritance collusion (testimonial collusion). In legal scholarship, collusion by
the testator is considered a “relative collusion” specific to inheritance law.
In the case of collusion between testators, the testator’s intention is to influence his or her heirs and cause their shares
to be distributed unfairly. This conflicts with the fundamental principles of inheritance law.
3-) Legal Regulation- Turkish Civil Code (TCC) Article 706 and following: are important in terms of the form of the donation contract and the
procedures to be followed in case the donation affects the reserved shares of the heirs.- Land Registry Law Article 26: applicable to land registry transactions and conditions for annotation in the land registry.- Relevant jurisprudence: The Supreme Court of Appeals Jurisprudence Unification Decision No. 1/2 dated 1/04/1974 specifically
determined the legal nature of the collusion of the deceased.
4-) Conditions of the Case and Claims of the Plaintiff
The Birth of the Right to Sue
Lawsuits based on the decedent’s collusion can be filed by heirs after the decedent has taken action. The purpose of this
lawsuit is to recover the inheritance share lost due to the collusive transaction. The heir may claim that the transaction
violated their inheritance rights and request the cancellation of the land registry record and its registration in their own
name.
Persons with the Right to File a Lawsuit- Lawsuits based on the decedent’s collusion can be filed by the heirs after the decedent has taken action. In other
words, the heirs of the decedent can file this lawsuit.
What can be the subject of the request?
Three basic claims can be put forward by the plaintiff heir:- Deed cancellation and registration in one’s own name (in proportion to share)- If this is not possible, a request for compensation (transaction price or value)- First of all, determination of the invalidity of the transaction due to the collusion of the deceased.
5-) Burden of Proof- In cases of collusion by a deceased, the burden of proof rests with the plaintiff. Supreme Court decisions
state that “the true will and purpose of the deceased must be clearly stated.”- Proof is generally provided through indicators such as witness testimony, written evidence, value ratio, low
transaction cost, and unusualness among the heirs.
6-) Competent and Authorized Court
Competent court:It is a civil court of first instance (within the framework of the provisions of the TMK and HMK).
Competent court:It is the court where the property is located. In practice, lawsuits can be filed for
multiple properties in the court where any one of them is located.
7-) What is Collusion and Stealing of Inheritance?
Collusion is the act of the parties to make a contract that does not comply with their true will and
is not valid between them, despite being apparently valid, in order to deceive third parties.
These are agreements. For example, a decedent who transfers real estate to third parties through land registry
sales in order to conceal the inheritance of assets has committed a fabricated transaction. This is because the
apparent purpose of the sale is to conceal the intention to conceal the inheritance of assets. Therefore, both the
apparent sale and any secret contract (oral or written) between the parties are invalid.
For the conditions of collusion to be met, the following three conditions must coexist:- There must be a knowing and intentional inconsistency between the parties’ real purposes and the transactions they carry
out,- There must be an intention to deceive third parties,- The parties must agree on not to engage in collusive transactions.
Collusion by a deceased is legally considered qualified collusion. In qualified collusion, there are two types of transactions:
apparent collusion and concealed collusion. Through these two transactions, the parties attempt to deceive third parties. The
apparent transaction does not reflect the true intention of the parties, and is intended to deceive third parties. For example,
property intended to be donated is transferred through a sale, with the intention of deceiving third parties. In collusive
transactions, the true intention of the parties is reflected not by the apparent transactions, but by the concealed transactions.
In the example above, the donation transaction is a concealed transaction.
😎 Statute of Limitations in the Case of theft of inherited property- A lawsuit for collusion by a deceased person can be filed after the death of the deceased. The lawsuit is not subject to a statute of
limitations or any other limitation period.- The collusion of the deceased has been shaped mostly within the framework of the Supreme Court decisions and doctrine.
CONCLUSION- Collusion of the deceased is an important institution in Turkish law, concerning both inheritance and
real estate law. It involves the fabricated transactions undertaken by a decedent to defraud property
from their heirs. These cases aim to uncover the true intent behind a seemingly valid title deed and to
restore justice between the heirs.
The Supreme Court of Appeals’ 1974 Unification of Jurisprudence decision established the legal framework for the issue of collusion between
deceased and deceased; subsequent jurisprudence has also provided guidance, particularly regarding the investigation of the deceased’s true
intentions, the burden of proof, and the limits of the principle of trust in the land registry. Current decisions emphasize the need to consider
factors such as the deceased’s purpose in making the transaction, the economic circumstances of the transfer, and the family relationships
between the parties.
In these cases, the burden of proof rests with the plaintiff heir, and since written evidence is often lacking,
discrepancies in witness testimony, expert reports, and transaction fees play a decisive role. The secret nature of
the collusion prioritizes the judge’s conscience.- In terms of the statute of limitations, deed cancellation and registration cases based on the collusion of an heir are not subject to the
statute of limitations or the statute of limitations because they are based on property rights. However, delaying the filing of a lawsuit for a
long time can create difficulties in proving the case due to the weakening of evidence. Therefore, it is important for heirs to file a lawsuit
within a reasonable timeframe upon learning of the collusion.
While the principle of trust in the land registry protects well-intentioned third parties, it does not protect against those who know or
should know of the collusion. In this respect, the principle of trust in the land registry represents a delicate balance between the
principle of security of title and the rights of heirs.- As a result, the cases of inheritance collusion are not only about individual interests but also about the justice and
It also maintains the principles of integrity. Success in these cases depends on legal knowledge, evidence
management, and the correct interpretation of precedents. Furthermore, due to the complexity and technicality
of this case, it is crucial to pursue it through a qualified attorney.
ABOUT THE DEED CANCELLATION-REGISTRATION CASES OF THE TESTATOR
MOST WONDERED QUESTIONS
1-) What is the collusion of the deceased?
A decedent’s collusion is a transaction undertaken by a testator (testator) to violate the inheritance rights of their heirs.
This is ostensibly a separate transaction, but in reality, it serves a different legal purpose. For example, a decedent’s
collusion is a transaction where property they intend to donate is presented as a sale and thus defrauds their heirs of
their assets.
2-) Who has the right to file a lawsuit in case of collusion of the deceased?
This lawsuit may be filed by the legal heirs or designated heirs whose inheritance rights have been violated. Third
parties have no right to file a lawsuit.
3-) In which court can a title deed cancellation and registration case based on the collusion of the deceased be filed?
The lawsuit is filed in the Civil Court of First Instance where the property is located. This court has absolute jurisdiction in terms of
jurisdiction and authority.
4-) Can a lawsuit for collusion be filed while the deceased is alive?
No. This lawsuit can only be filed after the deceased’s death. The deceased’s heirs do not have the authority to file a lawsuit
while the deceased is alive.
5-) Is there a statute of limitations or a limitation period in the case?
There is no statute of limitations for title deed cancellation and registration cases based on the inheritor’s collusion; the lawsuit can be filed at
any time. However, special statutes of limitations may apply for ancillary claims such as meagre compensation.
6-) Who has the burden of proof in case of collusion of the deceased?
The burden of proof rests with the plaintiff heir. The plaintiff must prove that the deceased transferred the property against his
will and for the purpose of embezzlement.
7-) What evidence can be used to prove the decedent’s collusion?- Land registry records and previous transactions- Sales/donation agreements- Payment documents- Witness statements- Expert reports- Reports showing the deceased’s health status and willpower- Official inheritance documents
😎 What does the Supreme Court’s Decision on Unification of Jurisprudence No. 1/2 dated 01.04.1974 mean regarding the
collusion of the deceased?
This decision established the fundamental principles applicable to cases involving collusion between deceased heirs.
Accordingly, in cases where the apparent sale by the deceased is actually a donation and is intended to deprive the heirs
of their inheritance, the plaintiff heirs may file a lawsuit for the cancellation and registration of the deed.
9-) What is the difference between the testator’s collusion and the reduction case?
The case of the testator’s collusion:It aims to cancel the title deed record of the real estate and register it in the name of the heir. Tenkis case:
It is opened in case of violation of the reserved share of the heir with a reserved share and aims to remedy the violation.
These two lawsuits are based on different legal foundations, but they can be filed together in the same incident.
10-) Are bona fide third parties protected in the case of collusion by the deceased?
According to Article 1023 of the Turkish Civil Code, if a bona fide third party is unaware of, or should not have known about, the collusive
transaction, the land registry record will not be canceled, and the third party’s good faith will be protected. In such a case, a claim for receivables
can be claimed from the person who acquired the property through collusion.
11-) Can a witness be heard in a case of collusion of the deceased?
Yes. Witness testimony is a crucial piece of evidence in cases of alleged collusion. Witness testimony plays a critical
role in revealing the true intentions of the parties.
12-) Is mediation mandatory before filing a lawsuit?
Because title deed cancellation and registration cases based on the collusion of a deceased person concern the real estate,
there is no requirement for mediation. However, the parties may optionally seek mediation if they wish.
13-) How are fees and expenses calculated when filing a lawsuit for collusion against a deceased?
Because this case concerns real rights, the calculation is based on a proportional fee. The fee amount is determined by
the official value of the property in question.
14-) Can the parties reach an agreement in a case of collusion of the deceased?
Yes. The parties can reach an agreement during the litigation process. Once an agreement is reached, the title deed transfer can be
completed through a settlement agreement and approved by the court.
15-) What happens if the case is rejected based on the collusion of the deceased?
If the case is dismissed, the land registry remains valid. Furthermore, the plaintiff will be responsible for the litigation
costs and the opposing party’s attorney fees. Therefore, strong evidence must be gathered before filing a lawsuit.
COURT OF APPEALS DECISIONS REGARDING THE DEED CANCELLATION-REGISTRATION CASE
REGARDING THE TESTATOR’S COLLUSION (TAKING AWAY THE PROPERTY FROM THE INHERITANCE)
1-) Supreme Court of Appeals Jurisprudence Unification Decision, Jurisprudence No. 1/2 dated 01.04.1974
(Decision stating that all heirs whose inheritance rights have been violated, whether they have a reserved share
or not, can file a lawsuit based on the legal ground of collusion of the deceased);
“…A person; in order to deprive his heir of the right of inheritance, in fact, (he) wishes to donate the immovable
property registered in the land registry, in accordance with his will to sell it before the land registry officer.
In the event that what was declared is found to have been realized, all heirs whose inheritance rights have
been violated, whether they are the reserved share holders or not, may file a lawsuit by claiming that the
apparent sales contract is fictitious based on Article 18 of the Code of Obligations and that the secret
donation contract lacks the formal condition, and that this right of lawsuit will not affect the rights provided
by Articles 507 and 603 of the Civil Code, which are valid contracts. It was decided by majority vote at the
second meeting of the Grand General Assembly of the Supreme Court of Appeals on April 1, 1974.
2-) Decision to Unify the Court of Cassation Jurisprudence, Jurisprudence No. 1/2 dated 01.04.1974 (decision
determining the legal framework of the deceased’s collusion);
“…In the event that a person, in order to deprive his heir of the right of inheritance, has actually expressed
his will before the land registry officer regarding the immovable property registered in the land registry
that he wishes to donate, all heirs whose inheritance rights have been violated, whether they are the
reserved share holders or not, may file a lawsuit claiming that the apparent sale contract is a fabrication
based on Article 18 of the Code of Obligations and that the secret donation contract lacks the formal
requirement, and that this right of action will not affect the rights granted by Articles 507 and 603 of the
Civil Code, which are valid contracts, and it was decided by majority vote at the second meeting of the
Grand General Assembly of the Supreme Court of Appeals on April 1, 1974…”
3-) Supreme Court Decision – 1st HD., E. 2015/10551 K. 2015/12513 T. 3.11.2015 (Decision on
the Validity of the Testator Collusion Transactions);
“…As is known, the collusion defined as “testimonial collusion” in practice and doctrine is a type of
relative (qualified) collusion by its nature. In this collusion, the testator genuinely wishes to make a
contract and transfer the deeded property. However, to deprive the heir of the right to inherit, he
conceals his true intention and transfers the deeded property he actually wishes to donate, by
expressing his will in the official contract he makes at the land registry office, in accordance with a sale
or death-support agreement.
(…)
As for the concrete incident, it is understood from the witness testimonies that the testator… attaches importance to charitable works,
that the properties are in the possession of the defendant, that the plaintiff’s witnesses also stated that the assignments were made
not for the purpose of stealing property, but due to concerns about the lavish lifestyle of the plaintiff’s father K2, and that the
plaintiff’s father K2 assigned the share of the property numbered parcel 591, which had been inherited from his wife…, to the
defendant by means of a sales contract, in his own name as principal and in custody of the children, to the plaintiff and to the
defendant… outside the case…”
4-) Supreme Court of Appeals 1st Civil Chamber E: 2014/9824 K: 2015/10454 T: 7.9.2015 (Investigation of
the Conditions of Collusion in Case of Maintenance of the Deceased);
“…As for the concrete incident, it is stated by the witnesses that the testator was 82 years old and bedridden on the date of
assignment, that he was looked after by his daughter, the defendant, before and during the contract date, and that he had no
resentment or conflict with his other children.
According to Article 6 of Turkish Civil Code No. 4721 and Article 190 of Code of Civil Procedure No. 6100, each person is
obligated to prove their claim. In the present case, the plaintiffs have not proven the existence of collusion. It is
understood that the assignment was made for the purpose of maintenance, and the defendant fulfilled his duty of
maintenance.
In this case, while the case should be dismissed, it is not correct to render a written judgment based
on a mistaken assessment.
5-) Supreme Court Decision – HGK., E. 2013/1634 K. 2015/1531 T. 10.6.2015 (Evaluation of
the Examinations and Criteria Regarding Whether or Not Collusion Exists in the Case of
Collusion of the Testator);
“…From the file content and the evidence collected; it is understood that the testator …. passed away on 29.03.2006, leaving
behind his daughter, the plaintiff K4, his son, K5 and the defendant’s father, K2, the immovable property with parcel number
315 was assigned by the testator to the defendant K3, who was born in 1969, by means of sale on 25.12.1985 for a price of
3,900,000 TL through his parents, and that in the expert report prepared as a result of the survey conducted, the value of the
immovable property in question was determined as 10,000,000 TL (old Turkish Lira) as of the assignment date.
In this case, the testator’s financial situation was good at the time of assignment, there was no need to sell the real
estate, there was an exorbitant difference between the real value of the real estate on the date of assignment and the
value shown in the contract, the defendant was a grandchild, 16 years old at the time of assignment and lacked
purchasing power; on the other hand, the defense of a division that considers the balance of rights while the testator
was alive can only be considered between the heirs, and considering that the defendant is not an heir, this defense
cannot be considered valid; since it is understood that the assignment made by the testator was made in a collusive
manner with the aim of stealing property from the heirs, the decision to resist should have been complied with,
whereas the decision to reject the case should have been made contrary to procedure and law.
For the reasons explained above, the decision to resist must be overturned…”
The Importance of Legal Support
Deed Cancellation and Registration Cases filed on the grounds of Collusion by a Deceased Deceased require
technical knowledge, legislative expertise, and in-depth expertise in judicial practices. While the legal
provisions are clear, each case has its own unique circumstances, and even a minor error can lead to loss of
rights. Therefore, working with an experienced attorney from the outset is crucial to determining the right
strategy, protecting your rights, and achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.