Drafting a Will, Validity Requirements, and Will Annulment in Turkey

Drafting a will is the most secure and legally recognized way to ensure that an individual's assets are distributed according to their wishes after their passing. To protect the testator's genuine intentions and prevent exploitation, the Turkish Civil Code (TCC) binds the process of drafting a will to strict formal requirements. Failure to satisfy these conditions can render the will completely void (annulled) upon a legal challenge.

1. Types of Wills under Turkish Law

The Turkish Civil Code recognizes three distinct types of wills:

• Official (Official Public) Will: Prepared by an official public officer (notary public or peace court judge) in the presence of two witnesses. This is the most common form, carrying the highest evidentiary weight and being the hardest to challenge successfully.
• Holographic (Handwritten) Will: A will written entirely by the testator’s own hand, including the exact date (day, month, year) and signed personally by the testator. Wills typed on computers or typewriters and merely signed are legally void.
• Oral Will: An exceptional method permitted only under extraordinary circumstances (imminent risk of death, war, isolation, epidemic) when drafting an official or holographic will is practically impossible.

2. Validity Requirements of an Official Will

An official public will must strictly conform to statutory procedures to be valid. The core requirements include:

1. Mental Capacity (Discretionary Power): The testator must possess the capacity to make rational decisions at the time of drafting. For elderly testators or those suffering from cognitive conditions, obtaining an official medical board report confirming "capacity to make transactions" from a state hospital is highly recommended to secure the will against future capacity challenges.
2. Disqualification of Witnesses: The two witnesses who attest to the will must not be direct relatives of the testator. Specifically, the spouse, parents, children, grandchildren, siblings, or the spouses of these individuals cannot act as witnesses.
3. Procedural Formalities: The testator must read the draft, sign it in the presence of the officer, and state to the witnesses that the document represents their final wishes. The witnesses must then write a declaration confirming that the testator was competent and that the declaration was made in their presence, and sign the document.

3. Lawsuits for the Annulment of a Will

Under Article 557 of the TCC, heirs or legatees whose rights are affected can file a lawsuit for the annulment of a will on the following limited grounds:

• The testator lacked mental capacity at the exact time the will was drafted.
• The will was drafted under duress, threat, fraud, or error.
• The contents or conditions of the will are contrary to law or public morality.
• The will was prepared in violation of mandatory formal requirements.

An annulment lawsuit must be filed within 1 year from the date the plaintiff learns of the invalidity grounds and their heirship status, and in any event within 10 years of the opening of the will.

4. Reserved Shares and Abatement (Tenkis) Lawsuits

A testator does not have absolute freedom to leave all their assets to anyone they choose. Under Turkish law, certain legal heirs (descendants, parents, and the surviving spouse) possess reserved shares (saklı pay). If a will violates these reserved shares, the will does not become automatically invalid. Instead, the affected heirs can file an abatement (tenkis) lawsuit to reduce the testamentary dispositions to the legally permissible limit.

Frequently Asked Questions

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Turkish Supreme Court Precedents on Wills

Below are three major decisions from the Turkish Court of Cassation highlighting procedural requirements, capacity tests, and the limits of abatement: