14. Law Department 2015/1687 B. , 2015/6049 D.
“Case Law Text”
Court : Izmir 7. The Court Of First Instance
02.02.2009 attorney for the plaintiffs against the defendant with the petition by made available upon request cancel out of the day of inheritance at the end of reasoning; for the acceptance of the case given 13.05.2013-time provision Yargitayca a hearing requested by the defendants in plaintiffs attorney trial attorney with the investigation, although that made for claimants who have been determined 02.06.2015’s day upon notification of Appeal Attorney N..S…he came. No one else came. An open hearing has begun. After the decision was made to accept the appeal, which is understood to be in due course, oral statements were heard. The trial is reportedly over. It’s up to the decision. Bilahare file and all the papers in it were examined and considered necessary:
In their case against the defendant Nukhet, the parties asked for the cancellation of the inheritance by the will of decased Meral in Izmir … notary public 24.08.2004, there were no reasons to remove the inheritance; with their petition on 15.07.2011, they also directed hostility to other defendants, claiming that the real estate that decased donated to internal defendants in order to smuggle property from terekeden should be subjected to criticism.
The defendant, Nukhet, argued that the reasons for abandonment of the inheritance were real; the internal defendants argued that the lowering of the rights had passed, and that the party could not be changed in the case.
The court ruled that the plaintiffs must pay TL 65,924.63 to the defendant Nukhet separately, and that each of the plaintiffs can claim TL 21,066. 92 separately from the internal defendants.
The decision was appealed by the acting defendants and the acting plaintiffs.
1-according to the trial, the evidence collected and the content of the file, the defendants ‘attorney and the plaintiffs’ attorney’s other appeals outside the scope of the following code were not seen in place, they were required to be rejected.
2-the case is related to the cancellation of the inheritance and the requests for tenkis.
An heir with a hidden share can be removed from the inheritance in whole or in part by saving due to unilateral death. The reason for dismissal from inheritance must necessarily be clearly and concretely shown in savings related to death. The reasons for disinherit can be collected under two main headings: ordinary and protective. The usual reasons for removal are to commit a felony against the heiress or one of the relatives of the heiress, or to a significant extent not to fulfill their obligations arising from family law. Since decased’s always has the right to save for a share other than a hidden share, the terms of deduction (rejection) for a share other than a hidden share are not sought.
The removed heir may object to the removal with a lawsuit filed against the legal heirs of the heir and the sub-game, if any. In a case of appeal against removal, the obligation to prove that the reasons for removal have occurred falls on the defendant’s heirs or the will creditor who has benefited from the failure to exit.
If the reason for the removal has not been shown or has not been proven by the defendants, the removed heir may ask for a tenk of his hidden share. Even in this case, the extracted heir cannot request an amount exceeding the stored share, and the extraction process is performed outside of the stored share. If there is clear error about the reason for the extraction, the extraction is completely canceled and treated as if no extraction had been performed.
In concrete conflict, decased Meral Izmir .. He is the plaintiff by the will he arranged on 24.08.2004 in the notary public office.. V..he disinherited her on the grounds that she had not fulfilled her adoptive duty, had not returned her savings as a debt, had stolen property; the plaintiff removed her daughter Nilgun from her inheritance on the grounds that she had not fulfilled her adoptive duty. decased’s has no heirs other than the plaintiffs and the defendant Nukhet. 512 of TMK. in accordance with the article, the defendant, who had a burden of proof, could not prove that the reasons for removing Nukhet occurred. For this reason, due to the invalidity in accordance with Article 512/last of the TMK, the plaintiffs continued the case with a request for tenkis. 28.03.2013 in the daily report, the active and passive of tereken were determined and the price to be subjected to criticism was determined and the hidden shares of the plaintiffs were found. However, if the price assessed in the tenkis account located in the decased’s Business Bank was accepted as US $ 45,674. 78, I…B.. the amount transferred through is reported to be TL 48,644.66. In addition, the plaintiffs stated that they paid dues and tax debts on the real estate owned by decased after decased ‘s death.; an adequate examination and research has not been carried out on this issue, and these costs have not been taken into account in the determination of the passivity of tereken. Besides, TMK’s 507/2. according to the article,the quarterly expenses of people living with decased and being cared for by him were set at $ 1,800.00, but it was not clear who decased lived with or by whom he was cared for. Taking into account the deficiencies described, it is necessary to determine the active and passive amount of Terek of decased’s at the date of death and determine the amount that can be saved.
Besides all this, TMK’s 571. according to the article, the case for tenkis must be opened within a period of lowering the rights, one year from the date on which it learns that its hidden share has been damaged, and in any case ten years. In a concrete case, the plaintiffs stated in their petition on 02.02.2009 that decased’s transferred the property owned by decased’s to internal defendants with children of the defendant Nukhet through donations. The plaintiffs have made this property the subject of litigation in their internal litigation petitions on 15.07.2011. Apparently, TMK’s 571. according to the article, a one-year reduction period has passed.
For this reason, while the court had to reject the case against internal defendants on the grounds that the period of denial had passed, the decision in writing was not considered correct, the provision had to be broken for these reasons.
Result: above (1.) rejection of other appeals by the defendants ‘attorney and the plaintiffs’ attorney for the reasons described in Paragraph, (2.) for the reasons described in bent, it was unanimously decided on 02.06.2015 to overturn the provision by accepting the appeals of the defendants ‘attorney and the plaintiffs’ attorney, to give the court of Cassation trial attorney fee of TL 1,100 to the plaintiffs by taking from the defendants, to be clear within 15 days from the notification of the decision.