What is the Collusion of the Deceased in the Transfer of Real Estate Ownership?

The collusion of the deceased is a legally invalid transaction in which the deceased transfers his/her real estates with apparent contracts in order to deprive the legal heirs of their inheritance rights. This situation usually occurs when the transfer of the real estate is shown as a sale , but in the background there is a donation will or an intention to deceive the heirs.

The Turkish legal system accepts the collusion of the deceased as an unjust transaction that violates the rights of the heirs and ensures that the rights are protected by the annulment lawsuits filed by the heirs in such cases. The elements of the collusion of the deceased, the methods of proof and the legal consequences are of great importance for the heirs. In this article, the definition, basis and legal processes of the collusion of the deceased will be discussed in detail.

1. What is the Collusion of the Deceased in the Transfer of Real Estate Ownership?
2. Legal Basis and Definition of Collusion of the Deceased
3. The Emergence and Causes of the Collusion of the Testator
4. Elements of the Testator's Collusion
5. Proof of Collusion of the Deceased and Burden of Evidence
6. The Court with the Authority and Responsibility for the Case of Collusion of the Deceased
7. Provisions and Consequences of the Collusion of the Deceased
8. Time Limitations in the Case of Collusion of the Deceased
9. Comparison of the Collusion of the Deceased and the Tenkis Case
10. Conclusion: The Importance of the Collusion of the Testator and Things to Consider

1. What is the Collusion of the Deceased in the Transfer of Real Estate Ownership?

a type of unfair legal transaction seen in real estate sales transactions made by the testator with the aim of depriving the heirs of their inheritance rights . These transactions, which are apparently made as a sale or transfer, are actually based on a secret contract and have the intention of deceiving the heirs.

The decedent's collusion occurs when the testator transfers his real estate to a person to whom he actually wants to donate it, under the guise of a sale or other transaction. Here, even if the real will is in the direction of donation or other favor, the transaction is shown as a sale in the land registry records and an attempt is made to usurp the legal rights of the heirs .

are closely examined by the Court of Cassation precedents and the Turkish legal system in order to prevent the heirs from losing their rights . The Court of Cassation's Decision to Unify the Jurisprudence dated April 1, 1974 determined the legal framework of the decedent's collusion and made such collusive transfer transactions voidable .

In the case of collusion by the deceased, since there is a discrepancy between the apparent reason for the transaction and its real reason, the heirs have the opportunity to protect their rights by filing an annulment lawsuit .

2. Legal Basis and Definition of Collusion of the Deceased

an unjust and deceptive act carried out by the deceased to deprive his heirs of their inheritance rights , and is a situation that is considered legally invalid. In Turkish law, collusion of the deceased is particularly addressed within the context of the Court of Cassation precedents and the provisions of the Civil Code regulating inheritance rights .

Legal Basis

The legal basis of the testator's collusion, although not based directly on a legal provision, has been shaped by the Turkish Code of Obligations (TBK) and the Supreme Court precedents:

1. Article 19 of the Turkish Code of Obligations : Collusive transactions are deemed invalid because they do not reflect the true will of the parties .
   • According to this article, if there is a discrepancy between the apparent form of a transaction and the true will of the parties, the transaction is collusive.
2. Inheritance Provisions of the Turkish Civil Code :
   • The TCC aims to protect the legal inheritance shares of the heirs . The fraudulent transactions made by the testator with the intention of deceiving can be annulled when they cause the heirs to lose their rights.

Supreme Court Jurisprudence Unification Decisions

The definition and application of the testator's collusion were clarified by the Supreme Court's Unification of Jurisprudence decision dated April 1, 1974. This decision sets out the following:

• Transactions carried out with the aim of stealing property from the inheritance violate the rights of the heirs.
• If the deceased's apparent transfer of real estate through a sale or similar transaction actually aims to hide property from his heirs, this transaction is considered to be fraudulent and can be cancelled.
• In this case, the heirs can legally invalidate the transfer of the real estate by filing an annulment lawsuit .

Definition

Collusion of the deceased is defined as an unfair transaction that includes the following elements :

1. Apparent Transaction : The transfer of the real estate is shown in the title deed as a sale, donation or other legal transaction .
2. Secret Agreement : The true will of the parties is to transfer the real estate to a certain person free of charge .
3. Intention to Deceive Heirs : The testator intends to violate the inheritance rights of the legal heirs and to favor a certain person.

For example: A father may have transferred his real estate to his son by showing it as a “sale” on the title deed. However, if in reality no price was paid in this sale transaction and the real estate was transferred without consideration, in this case the heirs may claim collusion and request the cancellation of the contract.

The Main Purpose of the Testator's Collusion

The main purpose of the testator's collusion is to ensure that the testator:

• unfair favoritism among the heirs ,
• thus depriving other heirs of their inheritance .

This situation leads to disagreements and legal disputes, especially between the heirs. The Turkish legal system aims to ensure justice by protecting the rights of the heirs in such cases.

The collusion of the deceased is based on the collusion provisions of the Turkish Code of Obligations and is applied through the Supreme Court precedents. In these cases where the apparent transaction does not coincide with the real will, the rights of the heirs are violated. These legally invalid transactions are resolved through an annulment lawsuit , preventing the heirs from losing their rights.

3. The Emergence and Causes of the Collusion of the Testator

Collusion of the deceased occurs when the deceased makes a contract with the apparent purpose of stealing property from his heirs. There are usually family, economic or social reasons behind this situation . Collusion of the deceased is contrary to the basic principle of inheritance law, which is the protection of legal inheritance shares , and often causes serious disputes between the heirs.

3.1. Cultural and Social Factors

Cultural and social structure is one of the most common reasons for the collusion of the deceased. In particular, family relations and traditional values may lead the deceased to favor some heirs.

• Favoritism of Sons : In the traditional family structure, the idea that inheritance should be left to sons is a factor that triggers collusion. The real estate is transferred to the son by showing it as a sale in the title deed, and other heirs (such as daughters) lose their rights.
• Economic Favoritism Between Spouses : The deceased may transfer real estate through collusion in order to provide unfair advantage to his/her spouse or children from the second marriage.
• Discrimination Among Family Members : The deceased may transfer the real estate by favoring a child whom he/she considers close to him/her or who provides support.

For example : By saying, “I gave this real estate to my son because he took care of me,” the testator actually presents a gratuitous transfer transaction as a sale.

3.2. Economic Reasons and Family Favoritism

Economic reasons also play an important role in the emergence of the testator's collusion:

• Purpose of Avoiding Debts : The testator may aim to get rid of debts by apparently transferring his/her assets to another person. In this case, he/she will be hiding the property by presenting it as a fraudulent sale.
• Tax Avoidance : In order to avoid tax liability, the deceased transfers the real estate by presenting it as a sale instead of donating it. This situation emerges as an economic reason for the decedent's collusion.
• Intra-family Economic Support : The deceased may transfer the real estate in order to favor an heir who is in financial difficulty. However , presenting this transfer as a sale violates the rights of the other heirs.

3.3. Intention to Deceive Heirs

The most basic reason for the decedent's collusion is to deprive the heirs of their inheritance rights or to deceive them. While the testator apparently declares that he has sold the real estate to a person, in reality this transfer is made without consideration .

• This situation arises especially when the testator is on bad terms with some of the heirs or does not want to leave an inheritance to them.
• The testator wishes to favor a particular person despite the rights of other heirs.

3.4. Lack of Legal Awareness

Another reason is that the deceased and the transferees of the real estate do not have legal awareness . In some cases, the transfer of property between the heirs is made to appear as a sale, even without realizing it. However, legally, this transaction is considered a collusion that violates the rights of the heirs.

3.5. Ignoring the Illegality of Collusive Transactions

Although some testators consider the transfer of real estate as a “legal solution,” they ignore the fact that the testator’s collusion is legally invalid. This is especially true if:

• false declarations at the land registry office ,
• To the grievance of the heirs ,
• It causes long-lasting legal disputes within the family.

Cultural, economic and family factors are effective in the emergence of the collusion of the deceased. The intention of the deceased to steal property leads to the violation of the rights of the legal heirs. While social traditions normalize the favoring of some heirs by the deceased, this situation is against the right of inheritance from a legal perspective . Collusion of the deceased is also clearly accepted as unlawful in the Supreme Court precedents and such collusion transactions are annulled and the rights of the heirs are protected.

4. Elements of the Testator's Collusion

Certain elements are required for the detection of the decedent's collusion and its legal invalidation. These elements provide for the demonstration of the inconsistency between the apparent transaction and the true will of the parties. The basic elements of the decedent's collusion in Turkish law are the apparent contract , the secret contract and the intention to deceive the heirs .

4.1. The apparent contract

The apparent contract is the transaction reflected in the land registry records and officially arranged. However, this transaction is a contract that does not reflect the real will and is made with the aim of hiding property from the heirs .

• Appearance of Sale in the Land Registry : The transfer of real estate is generally shown as a sale in the land registry . However, in reality, no price is paid or the transaction is for the purpose of donation.
• Appearance in Official Documents : The apparent contract is included in the land registry records and appears as an official transaction.

For example: The father who leaves the inheritance transfers his real estate to his son instead of his daughter and shows this transaction as a sale. However, if no price has been paid in the background, the apparent contract is a sham.

4.2. Secret Agreement

is the real agreement behind the apparent contract, reflecting the true will of the parties .

• is drawn up like a sale to conceal the intention to donate , the aim of the parties is to transfer the real estate without consideration.
• A confidential contract is usually not in writing and is based on an implicit agreement between the parties .

Important Point: The contradiction between the secret contract and the apparent contract is the main proof of the testator's collusion .

For example: The testator says that he transferred the real estate to an heir "because he looked after me". However, the apparent transaction was shown as a sale and no price was received. In this case, the secret contract is in the nature of a donation.

4.3. Intention to Deceive Heirs

The intention to deceive the heirs is the most important element of the testator's collusion. When transferring the real estate, the testator acts with the aim of violating the rights of the legal heirs .

• Conscious and Intentional Behavior : The testator's intention is to deprive other heirs of their share of the inheritance or to favor a particular heir.
• Deceptive Appearance : For this purpose, the transaction is shown as a sale, aiming to prevent the heirs from objecting to the transfer .

Example Cases:

• The testator usurps the inheritance share of other heirs by showing that he has “sold” his real estate.
• The person who inherits the real estate knows that the deceased intends to harm the other heirs and becomes a party to the fraudulent transaction by accepting this situation .

4.4. Violation of the Rights of Heirs

In order for the existence of collusion of the deceased, the transaction must violate the legal inheritance rights of the heirs . This violation occurs as a result of the intention to deceive.

• The real estate is transferred without the knowledge of the heirs or with the intention of misleading them.
• The heirs may file a lawsuit for annulment and regain their rights based on the collusion of the deceased.

Evaluation of the Elements Together in the Testator's Collusion

is determined by the presence of the above elements together :

1. Contract in appearance : The official transaction has the appearance of a sale or other transfer.
2. Secret contract : The real purpose of the parties is to transfer the real estate without consideration.
3. Intention to deceive heirs : The testator knowingly violates the rights of other heirs by favoring a particular heir.

If these elements are proven, the contract is deemed legally invalid and the real estate transfer is cancelled.

The elements of the testator's collusion play a critical role in determining the legal invalidity of the transaction. When a contract in appearance, a secret agreement, and an intent to deceive the heirs coexist, the rights of the heirs are protected and the collusive transactions are annulled. In such cases in particular, careful collection of evidence and proper conduct of the legal process will prevent the heirs from losing their rights.

5. Proof of Collusion of the Deceased and Burden of Evidence

The burden of proof for determining that the testator's collusion is not a valid legal transaction lies with the heirs who file the lawsuit. In testator's collusion cases, it is of great importance to demonstrate the difference between the apparent contract and the real will with concrete evidence. In such cases, although it is not easy to prove the intent to deceive and collusion, the Turkish legal system aims to protect the rights of the heirs .

5.1. Burden of Evidence in Proving the Collusion of the Deceased

The party claiming the existence of collusion by the deceased , that is, the heir, is obliged to prove the elements of the collusion.

• Burden of Proof : The heir who claims collusion must support his claim with clear evidence or strong presumptions.
• Right of Defense : The person who transferred the real estate is obliged to prove that there was no fake transaction and that the real estate was transferred for a real price.

5.2. Elements that can be used as evidence

The main evidence that can be used to prove the collusion of the deceased is as follows:

a) Witness Statements

• Family members, neighbors or people who witnessed the event during the transfer of real estate can be heard as witnesses in the case.
• Witness statements are important evidence supporting the existence of collusion.

For example: If a witness testifies as follows: “It was stated in the title deed that a sale was made, but the testator was saying that he gave this real estate for nothing in return,” this supports collusion.

b) Financial Situation of the Parties

• The economic situation of the deceased on the date of transfer of the real estate is an important evidence showing whether there was collusion in the transaction.
• If the testator does not have an economic need to sell the property, it can be concluded that the transfer was for donation purposes.

For example: If it is claimed that the deceased transferred the real estate as a "sale", it is investigated whether the price was actually paid in return.

c) Transfer Price of the Real Estate

• The difference between the price shown in the title deed at the time of transfer of the real estate and the real value of the real estate is an important evidence in proving collusion.
• If the real estate is transferred for a price much lower than its real market value, suspicion of a fraudulent transaction arises.

For example: If a real estate with a market value of 1 million TL is transferred for 50,000 TL in the land registry, this may indicate collusion.

d) Documents Regarding the Will of the Testator

• Elements such as written documents, letters or wills play an important role in proving the decedent's collusion.
• These documents can reveal the true will of the testator.

e) Land Registry Records

• Land registry records are examined to determine whether the transfer of the real estate is a real sale or a simulated transaction .

5.3. The Role of Presumptions and Judicial Precedents

In Turkish law, in cases of collusion of the deceased, the Court of Cassation precedents and legal presumptions are important in order to lighten the burden of proof :

• Clear Presumption of Collusion : If the testator's economic situation is not suitable or the sales price is unrealistic, this gives rise to a presumption of collusion.
• Supreme Court Decisions : The Supreme Court evaluates the fabricated transactions strictly in order to protect the rights of the heirs and does not seek strong evidence.
  • The Court of Cassation accepts collusion, especially in cases where the testator transfers property by discriminating among some heirs.

5.4. Difficulty of Proof and Plaintiff's Strategy

Proving the collusion of the deceased is difficult due to the family relationships and statements of the parties . However, the following strategies can be followed:

1. Reliance on Witness Evidence : Collusion can be proven through the statements of family members and witnesses.
2. Examination of Financial and Land Registry Records : In order to prove that the real estate transfer is not a real sale, the land registry records and the financial situation of the deceased must be examined.
3. Revealing Mutual Contradictions : The contradiction between the apparent sales contract and the actual will must be supported by concrete evidence.

Proving the collusion of the deceased is possible by the claimant heir presenting the collusion with evidence. Witness statements, land registry records, elements such as showing the real estate price lower than its real value are important evidence in proving collusion. The Court of Cassation precedents also ease the burden of proof in order to protect the rights of the heirs and ensure the cancellation of collusive transactions .

6. Court with Competence and Authority in the Case of Collusion of the Deceased

The cases of the falsification of the deceased are the cases filed for the purpose of protecting the rights of the heirs and the cancellation of the falsified real estate transfer. Such cases must be filed in the authorized and competent courts . Otherwise, the case may be rejected on procedural grounds. The rules of authority and duty are clearly defined in Turkish law.

6.1. Competent Court

In annulment cases based on the collusion of the deceased , the competent court is the court where the real estate is located.

• Legal Basis : According to Article 12 of the Code of Civil Procedure No. 6100 (HMK) , the competent court in cases regarding real property is the court where the real property is located.
• this rule is a strict jurisdiction rule, it is not possible to file the case elsewhere.

For example: A lawsuit for the collusion of a deceased regarding a real estate located in Izmir can only be filed in a court in Izmir.

6.2. Competent Court

The court competent for cases of collusion of the deceased is the Civil Court of First Instance .

• Legal Basis : Disputes regarding the transfer and cancellation of real estate fall within the jurisdiction of the Civil Courts of First Instance.
• Cases requesting the cancellation and registration of real estate are heard directly in the Civil Court of First Instance, as they concern the right of ownership.

Important Point:

• Since the lawsuit for the collusion of the deceased is a lawsuit regarding the real estate, it cannot be filed in courts such as Consumer Court or Civil Court of Peace.

6.3. What Happens in Case of Violation of Authority and Duty?

• Cases that are not filed in a competent court are rejected on procedural grounds .
• In cases filed in a court that does not have jurisdiction, the court determines that it does not have jurisdiction and sends the file to the court that has jurisdiction .

it is of great importance that the petition be submitted to the competent court in order to prevent the plaintiff from losing his rights.

6.4. Litigation Process

The process of filing a lawsuit for collusion of the deceased consists of the following steps:

1. Petition : The plaintiff heirs apply to the competent Civil Court of First Instance with a petition requesting the cancellation of the fictitious transaction.
2. Presentation of Evidence : Witness statements proving the testator's intent to collude, land registry records, and documents regarding the value of the real estate are presented to the court.
3. Parties to the case :
   • Plaintiff : Heirs whose inheritance rights have been violated,
   • Defendant : The person who transferred the real estate and the parties to the apparent contract.
4. Discovery and Expert Review : Expert reports are obtained on issues such as the value of the real estate and the real purpose of the transfer.

6.5. Importance of the Court of Jurisdiction and Authority in the Case

Filing lawsuits based on the collusion of the deceased in the correct court:

• Prevents loss of rights arising from procedural errors,
• It ensures that the case is concluded quickly and effectively.

For example: If the plaintiff heir files a lawsuit in Istanbul instead of the Civil Court of First Instance in Ankara, where the real estate is located, the court will decide on lack of jurisdiction and send the file to Ankara. This will cause the case to be prolonged.

In cases of collusion of the deceased, the competent court is the court of the place where the real estate is located, and the competent court is the Civil Court of First Instance. It is extremely important to file such cases in the right court in order to prevent procedural errors and to avoid loss of rights. Before filing a lawsuit, the heirs should start the process correctly by getting legal support and protect their rights effectively.

7. Provisions and Consequences of the Collusion of the Deceased

The collusion of the deceased is one of the unjust actions taken by the deceased to deprive the legal heirs of their inheritance rights. When the existence of the collusion is determined by a court decision, these actions are considered legally invalid and lead to various provisions and consequences. The cancellation of the collusion of the deceased is an important mechanism for the protection of the rights of the heirs.

7.1. Cancellation of Real Estate Transfer Transaction

If the decedent's collusion is detected, the apparent contract is deemed invalid and the real estate transfer is cancelled:

• registers the fraudulently transferred real estate back into the name of the deceased .
• As a result of this transaction, the real estate is distributed among the heirs in accordance with inheritance law.

For example: If a transaction shown as a sale in the title deed is found to be fake, the real estate is registered in the name of the testator again and is distributed among the heirs according to their legal inheritance shares.

7.2. Protection of the Rights of Heirs

By cancelling the collusion of the deceased, the rights of the legal heirs are protected:

• Heirs whose rights have been usurped may request the cancellation of the real estate and the return of their inheritance shares by a court decision.
• In this way, unjust dispositions on real estate are eliminated and justice is ensured .

Important Point: By detecting collusion, the heirs prove that the true will of the testator was not followed.

7.3. Correction of Land Registry

When collusion of the deceased is detected, the records in the land registry are corrected by court decision .

• The title deed registration of the person who acquired the real estate through a fictitious means is cancelled.
• The real estate is re-registered in the name of the testator and distributed among the heirs.

Land Registry Correction Process:

1. After the court decision becomes final, it is notified to the relevant land registry office.
2. The Land Registry Office cancels the registration made as a result of a fraudulent transaction.
3. The real estate is re-registered in the name of the testator.

7.4. Status of the Person Transferring the Real Estate

As a result of the collusion of the deceased, the person who takes over the real estate becomes an unjust possessor in the face of the rightful heirs .

• The person who transfers the real estate cannot claim any rights over the real estate.
• If any transactions have been made on the real estate (such as sale, mortgage), these transactions are considered invalid .

For example: If the person who transferred the real estate on a fake basis has transferred the real estate to a third party, the court may also annul this transfer.

7.5. Penal and Compensation Liability

Although there are no criminal sanctions in case of collusion of the deceased, liability for compensation may arise in some cases:

• If the person who transferred the real estate has bad intentions, the heirs can file a lawsuit to claim compensation for the damages they suffered.
• In this case, depending on the value of the real estate, financial compensation claims may be brought to the agenda.

7.6. Binding Force of Court Decisions

Court decisions made as a result of the cancellation of the testator's collusion:

• It binds both the parties and third parties.
• Re-transactions on the real estate are regulated in accordance with the court decision.

Important Point: Once the court decision becomes final, a fair and legal process is followed when distributing the real estate among the heirs.

7.7. Process of Claiming the Rights of Heirs

Heirs may exercise the following rights against fraudulent transactions:

1. Cancellation Suit : They can file a suit to cancel the real estate transfer and correct the land registry.
2. Compensation Claims : They may request compensation in case of loss of value of the real estate or damage to the heirs.
3. Restitution of Legal Shares : They can reclaim their rights over the real estate in accordance with their legal inheritance shares.

The provisions and consequences of the collusion of the deceased aim to protect the rights of the heirs and to ensure justice. In case of collusion detected by the court:

• The apparent contract is deemed invalid,
• The real estate transfer is cancelled and the land registry is corrected,
• The heirs are granted their legal rights and their real estate shares are distributed fairly.

In this process, it is critical for the heirs to exercise their legal rights correctly and present their evidence completely for the case to be concluded positively.

8. Time Limitations in the Case of Collusion of the Deceased

limitation period or definite limitation period in cases of collusion of the deceased . However, some legal situations and actual practices reveal that the case must be filed within a reasonable period of time . In cases of annulment based on collusion of the deceased, the period begins to run based on the date on which the heirs learn of the right to file a lawsuit.

8.1. Is There a Limitation Period in Cases of Collusion of a Deceased?

definite statute of limitations as in other cases . This is a practice that has gained stability with the decisions of the Supreme Court.

• The heirs may file a lawsuit as soon as they learn of the collusion.
• Even if a long time has passed since the transfer of the real estate, the right to file a lawsuit is preserved as long as there is evidence proving the collusion.

For example: Even if an heir becomes aware of the fabricated transaction 20 years later, he can file an annulment lawsuit if he can prove it.

8.2. Commencement of the Right to File a Lawsuit

In cases of collusion of the deceased , the beginning of the period is accepted as the date on which the heirs learn of the collusion .

• This date of learning may be the moment when there are strong suspicions that the real estate has been transferred or that there has been collusion.
• From the moment of learning , the heirs can file a lawsuit to seek their rights.

Example: An heir who learns that a real estate was transferred by the testator in a fraudulent manner may exercise his right to file an annulment lawsuit as of the date he became aware of this situation.

8.3. Court Assessment of the Length of Time

In cases of collusion of the deceased, a lawsuit can be filed even if a long time has passed. However, the courts evaluate whether the right to file a lawsuit has been abused :

• If the case is brought after a very long period of time, the court may take into account the principle of abuse of right .
• For this reason, it is important for the heirs to seek their rights as soon as they learn about them, in terms of the proof process .

Opinion of the Supreme Court: Heirs must file a lawsuit within a “reasonable period” after the date of learning. Otherwise, a claim of abuse of right may arise.

8.4. The Role of the Annotation in the Land Registry

In cases of collusion of the deceased, if no annotation is placed in the land registry, the real estate may be transferred to third parties. In this case:

• The heirs can protect their rights by filing a lawsuit from the moment they learn about the transfer.
• A lawsuit may be initiated to correct the land registry record and cancel the fraudulent transaction.

Important Point: If a note is placed, the transfer of the real estate is restricted and the rights of the heirs are protected during the litigation period.

8.5. Decisions of the Supreme Court Regarding the Time Limit in Cases of Collusion of the Deceased

limitation period in cases of collusion of the deceased , but the right should not be abused:

• “There is no definite statute of limitations in cases of collusion of the deceased. However, the claim of collusion must be brought within a reasonable period of time that will not be considered as an abuse of rights.”

According to this precedent, heirs should seek their rights without waiting for a long time and collect the necessary evidence in a timely manner.

8.6. Does the limitation period apply?

There is no limitation period in cases of collusion of the deceased. However, there may be some exceptional cases:

• Transfer of real estate to third parties : If third parties have good intentions, loss of rights may occur.
• Concealment of the collusive transaction by spreading it over time : In this case, the burden of proof may be heavier on the heirs who claim collusion.

limitation period or definitive limitation period in cases of collusion of the deceased . Heirs can file a lawsuit for annulment from the date they learn about the collusion. However, since a claim of abuse of rights may arise in the event of a long wait, it is important for heirs to seek their rights in a timely manner. Courts make decisions by evaluating the validity of the evidence and the process of exercising the right. Therefore, it is recommended that heirs start the lawsuit process by obtaining legal support from the moment they learn about it .

9. Comparison of the Case of Collusion of the Testator and the Case of Reduction

The cases of collusion and reduction are cases filed for the purpose of protecting the rights of inheritance. However, these two cases are different from each other in terms of their basis , purposes and areas of application . In case the rights of the heirs are violated, which case to file is determined according to the nature of the incident and the evidence.

9.1. Legal Basis

• The Case of Collusion of the Deceased :

• the collusion provisions of the Turkish Code of Obligations .
• It aims to reveal the contradiction between the apparent contract and the true will of the parties.
• The Court of Cassation's jurisprudence, especially the Decision on Unification of Jurisprudence dated 1 April 1974, forms the basis of this case.

• Tenkis Case :

• the inheritance provisions of the Turkish Civil Code .
• the legal inheritance shares of the heirs with reserved shares are violated due to unfair gains made by the testator .
• Article 565 of the TMK is the legal basis for the reduction case.

9.2. Purposes

• The Case of Collusion of the Deceased :

• The aim is to cancel the fraudulent transactions that the testator presents as sales or donations.
• In reality, it reveals the invalidity of the transfer transaction made with the intention of deceiving the heirs .

• Tenkis Case :

• In case the inheritance shares of the heirs with reserved shares are violated, the aim is to bring the unfairly transferred properties within the reserved share limits .
• Instead of cancelling the acquisition, the heir is ensured to receive his reserved share .

Example: If a father has favored an heir by donating his real estate, the rights of the reserved share heir are protected by a reduction lawsuit. In the case of a decedent's collusion, the aim is to completely cancel the transfer transaction.

9.3. Parties

• The Case of Collusion of the Deceased :

• Plaintiff : Legal heirs of the deceased.
• Defendant : The person who acquired the real estate through collusion and other parties involved in the transaction.

• Tenkis Case :

• Plaintiff : Heirs with reserved shares (descendants, surviving spouse, parents).
• Defendant : The person or persons to whom the testator made a donation or endowment.

9.4. Subject and Results

9.5. Proof Methods

• The Case of Collusion of the Deceased :

• It is proven with evidence such as witness statements, land registry records, the financial situation of the parties, and the fact that the price of the real estate transfer is lower than its real value.
• The burden of proof is on the plaintiff heir.

• Tenkis Case :

• It is proven with evidence that the reserved share has been violated and that the dispositions made by the testator exceed the legal limits.
• In this case, the actions that violate the reserved share of the heir must be concretely determined.

9.6. Opening Times

• The Case of Collusion of the Deceased :

• There is no statute of limitations or limitation period. A lawsuit can be filed as soon as the collusion is discovered.

• Tenkis Case :

• The reduction lawsuit is filed after the death of the testator and there is a 1-year limitation period . This period starts from the date the heir learns about the disposition.
• within 10 years from the death of the testator .

The cases of collusion and reduction are cases filed to protect the rights of the heirs. However, there are important differences between these two cases in terms of legal basis , purpose and results :

• The lawsuit for the collusion of the deceased aims to annul the apparently collusive transactions made by the deceased.
• A reduction suit is filed to protect the legal shares of the heirs with reserved shares.

Heirs must decide which lawsuit to file based on the nature of the incident and collect their evidence. Getting professional legal support during this process will ensure that the rights of the heirs are effectively protected.

Conclusion: The Importance of the Testator's Collusion and Things to Consider

Collusion of the deceased is an important legal problem that arises due to the apparent legal transactions made by the deceased with the aim of deceiving the legal heirs. The heirs may demand justice by filing an annulment lawsuit in order to protect their rights against the unfair transfer of real estate through collusion of the deceased .

In Turkish law, within the framework of the Supreme Court's Unification of Jurisprudence Decisions and the provisions of the Turkish Code of Obligations , fictitious transactions are absolutely considered invalid. In such cases, the transfer of the real estate is cancelled and the heir is ensured to regain his legal rights.

Things to Consider in the Collusion of the Testator

1. Gathering Evidence: It is of great importance to collect evidence such as witness statements, land registry records, the real value of the real estate and the financial situation of the parties.
2. Competent Court: The lawsuit must be filed in the Civil Court of First Instance where the real estate is located .
3. Time Limit: Although there is no specific statute of limitations for cases involving collusion by a deceased, it is necessary to file a lawsuit within a reasonable period of time from the date of discovery .
4. Professional Support: In order to avoid losing their rights, heirs must get support from a lawyer and manage the legal process correctly.

Importance

Cases of collusion of the deceased are of great importance in order to ensure justice within the family and to protect the legal rights of the heirs. Collusive transactions that are carried out against the law are rendered invalid as a result of the annulment case and a fair distribution of the inheritance is ensured.

As a result, it is necessary to fight effectively against the collusion of the deceased in order to protect the rights of the heirs. Careful collection of evidence, applying to the right court and carrying out the process with professional support play a critical role in ensuring that the heirs obtain their rights.