DECEASED COLLUSION (EVASION OF PROPERTY FROM INHERITANCE)

What is Deceased Collusion?

Collusion is an intentional inconsistency between the will and declarations of two parties. According to Article 19/1 of the Turkish Code of Obligations, “In determining and interpreting the type and content of a contract, the true and common will of the parties shall prevail, regardless of the words used by mistake or to conceal their true intentions.”

Therefore, deceased collusion is the concealment of the real purpose of a person’s transactions in order to deprive his/her heirs of the right of inheritance. This process is usually carried out by disguising gratuitous gifts of property as a sale or a lifelong maintenance contract. The main purpose here is to prevent the heirs with reserved shares from filing future equalization lawsuits and subsequently from receiving their inheritance shares. In other words, the legator wants to eliminate the possibility of his/her heirs filing a lawsuit by presenting the goods that he/she actually wants to donate as sales. Four elements of collusion are investigated in inheritance evasion cases:

1. Apparent transaction (contract)

The transaction made by the parties to deceive third parties (heirs) is called an apparent transaction. Here, the parties have agreed that the legal transaction is only on the surface and will not have any consequences for them. For example, an official sale or a contract of maintenance until death is an ostensible transaction in deceased collusion. Although it is shown that the real estate is transferred for a price, it is the transfer of the real estate without a price or by paying a price much lower than the actual price.

2. Collusion agreement

The parties must make an agreement that the apparent (collusive) transaction is made solely to deceive third parties and that it will not be valid between them. This agreement is called a collusive agreement. The agreement that the sales contract made by the parties is made for the purpose of evading property from other heirs and that it will not be valid between themselves is a collusion agreement. This purpose is not reflected in third parties and official documents.

3. Purpose of deceiving the heirs

Article 19/1 of the Turkish Code of Obligations states that “regardless of the words used by the parties by mistake or to conceal their true intentions”. Therefore, for the existence of collusion, the existence of the will/purpose to evade property is a must.

4. A secret Agreement (Real Intention)

A secret agreement is an agreement that represents the real will of the parties. In deceased collusion, the fact that the transaction officially shown as a sale is actually a donation is a secret agreement. The wills of the parties agree that the contract between them is a contract of donation.

Which Situations Can Be Considered as Deceased Collusion?

First of all, the most common situation in practice is to show that the deeded real estate property is transferred to one of the heirs in the form of sale. Although the legator actually donated this real estate, that is, transferred it gratuitously, it shows it as a sale in the title deed.

Another situation is the sale of the title deeded real estate property by using an intermediate owner. In this case, the legator transfers the real estate registered in his name in the title deed to another person. This person then transfers the relevant real estate to another person or another heir of legator at a low price. Although the legator’s control over the real estate property seems to be lost, the legator retains control over the real estate property during these transactions.

Another situation is the transfer of the real estate property in exchange for a lifelong maintenance contract. In this case, although the real estate is actually donated, it is made to appear as if it has been transferred in exchange for a lifelong maintenance contract.

In the last case, donation in the form of an apparent transaction is also considered as deceased collusion.

All of the above cases are invalid because they do not correspond to the real will of the parties and the purpose of the legator is to evade property.

What are the Lawsuits that can be filed in case of Deceased Collusion?

Based on Article 19 of the Turkish Code of Obligations, a deed cancellation and registration lawsuit can be filed, as well as the return of the real estate property to the inheritance.

Who Can File a Muris Deceased Collusion (Evasion Of Property From Inheritance) Lawsuit?

Any heir whose inheritance right has been violated can file a lawsuit for deceased collusion, whether or not he/she has a reserved share. This lawsuit can also be filed by legal heirs, appointed heirs or adopted children, but persons who reject the inheritance, waive the right of inheritance or are disinherited cannot file this lawsuit.

Can the Deceased Collusion (Evasion Of Property From Inheritance) Lawsuit be Filed Individually?

Each of them can file a Deed Registry Cancellation and Registration lawsuit for the case of deceased collusion in proportion to their own share. The fact that the heirship is in the form of a participation does not prevent this situation. However, if it is requested to return the real estate to the estate(inheritance), the approval of other heirs who have not filed a lawsuit is required or it is necessary to continue the lawsuit with a representative.

Who Has the Burden of Proof in a Deceased Collusion Case?

The burden of proof is on the plaintiff/claimant heir. The plaintiff/ claimant must prove the will of the legator to evade property.

What are the Statute of Period Of Prescription And Statute Of Limitations for Deceased Collusion Lawsuits?

The case of Deceased Collusion can be filed after the death of the legator (inheritor) without any statute of limitations or period of prescriptions.

How Long Does a Deceased Collusion Case Take?

In general, the first instance proceedings of the Deceased Collusion Lawsuits take 2-2.5 years.  When the Supreme Court of Appeals processes are taken into account, it is seen that this period extends up to 4 years, and in some legal practices, up to 6 years.

Ecem Hayırcı – Attorney at Law