Miras Sözleşmelerinin Tahvili

Abstract

In Turkish law, dispositions mortis causa that allow voluntary succession can be made in two forms: by will or by inheritance contract. Inheritance contracts, which can be made in two categories as positive inheritance contracts or contracts of waiver of inheritance, are subject to stricter rules regarding both form and testamentary capacity compared to wills. In order to respect the testator’s final intentions and ensure the preservation of dispositions mortis causa as much as possible, the invalidity of these dispositions is treated differently from the invalidity of inter vivos legal transactions and subjected instead to the sanction of annulment. Although not expressly regulated by statute in Turkish law, convertion, whereby an invalid legal transaction is converted into another valid legal transaction, is recognized both in judicial decisions and doctrine. The application of conversion requires the existence of an invalid legal transaction capable of being transformed into a valid one, the second transaction must meet all formal requirements, and the presence of the testator’s hypothetical intent. Where these conditions are met, the conversion occurs automatically. An inheritance contract that is annulled due to a lack of capacity or failure to meet formal requirements may still fulfill the elements of a valid will. In such circumstances, if the testator’s hypothetical will can be determined, the invalid inheritance contract may be converted into a will. In the first part of our study, inheritance contracts and the annulment of dispositions mortis causa are examined, in the second part, the instutition of conversion is discussed, and in the final part the conversion of inheritance contracts into wills is analyzed, with reference to relevant judicial decisions.