Escape of property from the inheritance (heir musalism)

What is Muvazaa?

Considering the principles of freedom of will and form in contracts, it is possible to say that the majority of legal disputes arise from contracts. One of the reasons that causes contracts to be invalid is the existence of collusion. Collusion can be defined as a collusive agreement intended to hide and camouflage the actions taken by the contracting parties to deceive third parties. By making a collusion agreement, the parties act with the intention of hiding the real relationship between them or pretending to have a legal relationship that does not exist, thus preventing third parties from asserting their rights and demands.

There are two types of collusion: absolute and relative. Absolute collusion means that the apparent transaction has never been carried out, and this transaction does not produce any legal consequences. Relative collusion is the concealment of the real relationship between the parties. An example of relative collusion is when the parties present the donation as a sale by drawing up a sales contract.

Muris Muvazaası

The evasion of property from inheritance (muris collusion), which is a special application of relative collusion regulated in Article 19 of the Turkish Code of Obligations, is not separately defined in the law. Although Muris collusion derives its source mostly from the Supreme Court of Appeals' Jurisprudence and scientific opinions, its main source is the Unification of Jurisprudence Decision No. 1/2 dated 1.4.1974. With this decision, the conditions of the muris collusion have been clarified.

ELEMENTS OF MURIS MULAZA

Visible Transaction

While talking about the concept of collusion, we stated that the parties act with the intention of hiding the real relationship between them by making a collusion agreement or pretending to have a legal relationship that does not exist. The apparent transaction represents an invalid contract prepared for the purpose of creating a deceptive basis for the collusion agreement. The parties aim to deceive third parties by making it seem as if there is a declaration of will that does not actually exist. To do this, they present it as if it were an action independent of their real will. In Muris muvazaas, the apparent transaction is often arranged as a sale or a maintenance contract until death.

In relative collusion, the apparent transaction becomes invalid due to collusion. The parties actually do not have the will to take such a transaction.

Secret Transaction

Secret transaction refers to the contract that reveals the true purpose of the testator. A secret transaction is a transaction that is intended to produce results regardless of the contract it is hidden behind.

The wills of the parties unite at the point where the secret transaction produces results. Conducting a secret transaction together with a collusive transaction does not affect its validity. If the confidential transaction is made without complying with the formal requirements, it is deemed invalid. In Muris collusion, the secret transaction is generally carried out without complying with the formal requirements. Therefore it becomes invalid.

Collusion Agreement

The parties to the colluded transaction know the purpose of the collusion. This awareness is called collusion agreement. Collusion agreement is a mandatory element of collusion. The parties come to an agreement on which transaction they carried out and why, by making a collusion agreement. A collusion agreement can be oral or written. However, when the parties to the agreement want to claim collusion, they can only rely on written evidence.

Purpose of deceiving the heirs

The parties must aim to deceive the heirs with their fraudulent transaction. Otherwise, there can be no question of muris collusion. Deception of heirs is practiced in the form of stealing property from the inheritance. If the testator did not act with the intention of stealing property from the heirs, there can be no question of heir collusion. The purpose of the testator has been determined by the Supreme Court as one of the important criteria that should be considered. For this reason, it will be examined again under a separate heading below.

According to the Supreme Court, the purpose of the deceased to smuggle property should be determined by looking at some criteria. "Since it is generally difficult to clarify the situation by determining the hidden true will and purpose, which is an internal problem, it is of great importance not only to collect the evidence in this direction completely, but also to evaluate it together and correctly. For this purpose, facts such as the customs and traditions of the country and region, social trends, the ordinary course of events, whether the testator has a justified and reasonable reason for making the contract, whether the defendant party has the purchasing power, the difference between the sales price and the real value at the date of the contract, the human relationship between the parties and the testator. It is imperative to use it.” Supreme Court 1.HD. 2020/164K.

Some of these criteria;

- Customs and traditions of the country or region,

- The ordinary course of events,

- Social trends,

- Whether the testator has a justified and reasonable reason for making the contract,

- The feeling of gratitude felt by the testator towards the person who takes care of him,

- Whether the defendant party has purchasing power, - The difference between the sales price and the real value at the date of the contract, - The human relationship between the parties and the testator,

- Financial situation of the deceased and the person he inherits,

It is possible to count as follows.

As a matter of fact, in a decision of the 1st Civil Chamber of the Supreme Court of Appeals dated 2018, "In determining whether the assignment made by the testator in exchange for care and maintenance until death is tainted with collusion, information and facts such as the age of the deceased at the date of the contract, his physical and general health condition, family conditions and relations, the amount of assets he has, the ratio of the transferred property to his entire property, whether it remains within a reasonable limit, should be taken into consideration." must." He stated as follows.

DEED CANCELLATION AND REGISTRATION CASE BASED ON INSURANCE OF INSURANCE

Muris collusion case actually refers to the case of title deed cancellation and registration. Therefore, the collusion of the deceased will only come to the agenda in terms of immovable properties registered in the title deed. Immovable properties that are not registered in the title deed are considered movable. It is not possible for movables to be subject to title deed cancellation and registration.

As a matter of fact, in a decision of the Supreme Court, "Immovable properties without title deeds are considered movable property in terms of sale and transfer, the transactions on them are not dependent on the form, therefore, in case the immovable properties without title deeds are subject to a collusive transaction, although the apparent contract is invalid because it is not in accordance with the will of the parties, the reason of collusion of the deceased cannot be relied on since the formal condition is not required in the secret contract drawn up in accordance with the will and purpose of the parties." He ruled as follows.

WHO SHOULD THE MURIS MUSEUM CASE BE FILED BY?

The persons who can file a lawsuit alleging Muris collusion are specified in the Unification of Jurisprudence Decision No. 1/2 dated 1.4.1974. According to the decision, all heirs whose inheritance rights have been violated have the right to file a lawsuit, whether they have reserved shares or not. Heirs do not have to file the case together. Each heir can file a lawsuit in proportion to his share.

The claim of Muris collusion can be proven with all kinds of evidence.

State of Deprivation of Inheritance

People who reject the inheritance do not have the right to file a lawsuit. The person who is disinherited and the person who renounces the inheritance does not have the right to sue.

CONFIDENTIAL (IN HAND) DONATION

It is also possible for the testator to make a donation by paying the money instead of transferring a title deed. For example, the real estate paid for by the father can be registered in the name of the son. In such cases, a lawsuit for title deed cancellation and registration cannot be filed due to the collusion of the deceased. If the conditions are met, criticism case can be filed.

PURPOSE OF THE LEGACYER IN THE INSURANCE CASE

As we mentioned above, the most important criterion in determining the existence of the deceased's collusion is the purpose of the testator. In a decision dated 2020, the 1st Civil Chamber of the Supreme Court of Appeals stated the importance of the purpose of the testator as follows: "It should be noted immediately that reaching a healthy, fair and correct solution to such disputes depends on revealing the real aspect of the assignment made to the defendant, in other words, the real will and purpose of the testator, without leaving any room for hesitation." He emphasized as follows.

In order to be able to talk about collusion of the deceased, the testator must carry out the transfer with the intention of stealing property from the heirs. If this condition is not met, the case will have to be rejected. The Supreme Court said, "The plaintiff's witnesses heard did not reveal any concrete information that required the testator to smuggle property from his children from his first wife, on the contrary, they stated that he sold some of the apartments and built a house for his sons, and the defendant's witnesses stated that the defendant bought the independent section in dispute at its price, and paid some of the price in advance and the other part in installments. In that case, since the allegation that the testator made the assignment for the purpose of smuggling property could not be proven, it should have been decided to reject the case with an erroneous evaluation." "The decision to accept it required reversal." With his statements, he stated the impact of the testator's purpose on the course of the case.

The Supreme Court is of the opinion that the case filed should be rejected in cases where the testator did not act with the intention of stealing property despite the existence of collusion.

As a matter of fact, in a recent HGK decision, "The dispute that came before the General Assembly of Law through resistance centers on whether the assignment of 1/4 share of the immovable property in question by the testator by selling it to the defendant, with whom he was living together in a religious marriage at that time, was actually intended to steal property from the heir and was collusive."

There is no dispute that the case at hand was filed based on the legal reason of collusion of the deceased and, as the defendant admitted, 1/4 share of the immovable property in dispute was shown as sale in the title deed, but it was actually donated to the defendant by the deceased. Therefore, the main issue that needs to be resolved is to determine whether the deceased acted with the intention of stealing property from his heirs when making this assignment. In this respect, when the evidence in the file is evaluated, first of all, it should be noted that the existence of a reason that would require the deceased to smuggle property from his heirs has not been demonstrated and proven by the plaintiff party, and from some of the plaintiff witness statements heard in the file, it is understood that there was no resentment between the deceased and his children on the date of assignment that would require the deceased to smuggle property from his heirs. Moreover, the fact that the deceased had the opportunity to transfer the entire immovable property, but only 1/4 of it, shows that he acted not for the purpose of smuggling property, but to fulfill his promise to the defendant to buy a house."

As we stated above, not every transfer carried out by the testator will be subject to cancellation. In some cases, the testator may make some transfers in order to divide his inheritance.

In a Supreme Court decision, this situation was stated as follows: "The defendants made a defense of partition by stating that the testator bought 2 pieces of real estate and a vehicle for the plaintiff during his lifetime, and their witnesses declared that the testator acted with the will of sharing, but the court did not focus on the defense of partition, reached a conclusion without making an investigation as to whether the testator formed his will in this direction, and the title deed records of the immovable properties reported in the defense were not brought. This being the case, in accordance with the legal principles, the defendants' defense was not considered." investigation of the movable and immovable properties and rights transferred from the testator to all his heirs, bringing title deed records, official acts and other evidence and documents, if any, from the relevant authorities, determining whether the testator made an acceptable distribution that observes the balance of rights among his heirs during his lifetime, collecting all party evidence in this regard, clarifying whether the testator's purpose of sharing or smuggling property was prioritized, and a decision should be made within the framework of the result to be reached. "It is not right to decide as it is." He stated as follows.

Again, in accordance with the above criteria, transfers made by the testator within the framework of the care until death agreement will only be valid provided that they are made at a reasonable rate. Transfers made in excess of the ratio will be subject to cancellation.

The 1st Civil Chamber of the Supreme Court said on the subject, "The case is about the request for title deed annulment and registration in proportion to the inheritance share based on the legal reason of muris collusion. It is established that the testator has assigned 10 immovable properties to the defendant, who is the only son he lived with, with the agreement of taking care of him until his death, in order to smuggle property from his daughters. While it is possible to ensure the contract of taking care of the testator until his death by transferring a smaller amount of real estate, a large part of his property." "He exceeded the reasonable limit by making an assignment. Therefore, there is no error in the determination that all assignments made with the contract of sale and care until death are collusive." He made a decision as follows.

In addition, the existence of a disproportion between the prices alone cannot be considered as a reason for collusion. Other criteria must also be present.

THIRD GOOD-INTENTIONED PERSON IN THE MURİS TRIAL

Article 1023 of the TMK states, "This acquisition of a third party who acquires ownership or another real right based on the registration in the land registry in good faith is protected." It is shaped like. With this provision, the principle of trust in the land registry finds its application. Therefore, in such cases, allegations of collusion cannot be made against bona fide third parties.

STATEMENT OF LIMITATION IN MURİS MUSEUM CASE

The court responsible for hearing the title deed cancellation and registration case based on Muris collusion is the civil court of first instance.

The case is filed in the court where the real estate is located.

The decedent collusion case is filed after the death of the testator and is not subject to the statute of limitations.

DIFFERENCE OF MURİS CONSTRUCTION AND TENKİS CASE

1- Muris collusion is not subject to statute of limitations. The statute of limitations in the Tenkis case is 10 years.

2- In the Muris collusion case, the competent court is the court where the real estate is located. In the Tenkis case, the court of the last place of residence of the testator has jurisdiction.

3- While a lawsuit for annulment due to collusion can be filed by all heirs, whether or not they have a reserved share, a lawsuit for reduction can only be filed by the heirs with a reserved share and the creditors of the heirs with a reserved share.

Due to the collusion of the deceased, title deed cancellation and registration cases and criticism cases may be filed on a regular basis.