Written document or verbal statement that determines the last wishes and desires of the legator and the principles of sharing his legacy is a testament. A testament is a disposition mortis causa.
As of the date of issuance of the will(testament), the issuer must have the power of discernment. Since it is a strictly personal right, it cannot be done by a legal representative or attorney. In addition, the testator must be at least 15 years old. The fulfillment of these conditions is necessary and sufficient to be able to legally draw up a will.
The testator does not have unlimited right of disposition on the inheritance. The right to make a will should not violate the “reserved shares of the heirs with reserved shares”. The inheritor can dispose in a way that does not touch these reserved shares.
In order for the will to be valid, the will of the inheritor must not be crippled for reasons such as mistake, deception, intimidation and coercion! If the testator’s will made with a crippled declaration of will and the will is not reversed within the 1-year period of disqualification, his heirs do not have the right to file an annulment lawsuit after his death. However, if the legator learns that he was wrong, deceived, or gets rid of the effect of intimidation or coercion, if he does not return from this disposition, the disposition become valid.
A will can be drawn up in three ways: formal, verbal or handwritten.
- Verbal Testament; In extraordinary situations where it is not possible to make a will in the other two ways, it is drawn up in the presence of 2 witnesses by stating the date and place and signed by the witnesses. The will drawn up in this way is given to the nearest magistrate or civil court of first instance as soon as possible. Witnesses can also verbally convey the testator’s statements to the judge instead of writing them down. Witnesses must have the capacity to act and not be beneficiaries of inheritance. Even though it has been 1 month since the disappearance of the extraordinary situation, if the legator is still alive, the provision of the verbal will is automatically terminated.
- Handwritten Testament; The date and signature of the testator’s own handwriting must be included in the will. .The absence of signature or date will invalidate the testament. The fact that a handwritten will is torn or cut into pieces does not by itself cause it to be invalid. In this case, the testament will still be valid if the remaining parts present an independent integrity.
- Formal Testament; They are wills that are prepared before a notary public, magistrate Judge or an authorized officer (such as a consulate) in which the will of the person is clearly stated. In order for a will drawn up in this way to be valid, there must be 2 witnesses other than the officer in charge. Witnesses do not have to know the contents of the will; The purpose here is to declare to them that the will is read in the presence of a notary, that the legator is in accordance with their wishes, and to testify that the person is competent to draw up a will. These witnesses must be literate, capable of acting and not be related to the testator. When the descendants, siblings and spouses of the person who is a witness or officer in charge are made to gain through a will, only this part becomes invalid and the other provisions in the will are valid. It can also be arranged in the form of a person’s handwritten testament to be submitted to the authorized officer and certified.
Unless the will is filed at the Civil Court of Peace in the last place of residence of the testator, no direct action can be taken based on the will. Regardless of whether the will is valid or not, it is filed within 1 month from the delivery and notified to the relevant parties. In its decision numbered 2014/19530, Basis, 2014/16709, the 3rd Civil Chamber of the Court of Cassation emphasized that it is not correct to open a will without duly summoning all heirs and interested parties.
You can contact us for information about making a will or the validity of a will drawn up for or against you.
