The destruction of a will is regulated in the second paragraph of Article 543 of the Turkish Civil Code (TCC). It is possible for the will to be destroyed by an accident or by the fault of a third party. In this case, there is no declaration of will by the testator for revocation. The destruction of the will alone is not deemed sufficient for its nullity. Pursuant to Article 543/II of the TCC, a will that is destroyed and the content of which cannot be exactly and completely determined is null and void. In that case, if its content can be determined exactly and completely, it is possible for the will to be valid. This is not the only consequence of the destruction of the will, and it is also possible for the person in whose favour the will was made to claim compensation from the third party who destroyed the will based on Article 49 of the TCO (Turkish Code of Obligations). However, in the event that the content of the will cannot be exactly and completely proved, it will not be possible to prove the exact amount of damage. In addition, if the person who destroyed the will is also the heir, he will be deprived of the inheritance. For this, the heir must destroy the will intentionally and unlawfully.
Testament Revocation of Testament Destruction of Testament Compensation Deprivation of Inheritance
When the marginal title of Article 543 of the Turkish Civil Code (TCC) is evaluated together with the main heading, it has the meaning of “revocation of a will by annulment”. When its content is analysed, it is seen that the provision regulates not only the revocation of the will, but also the destruction of the will. Namely, while the first paragraph of the provision regulates the testator’s revocation of the will by destruction, the sec-ond paragraph regulates the destruction of the will.
What is meant by the destruction of the will is that it becomes unreadable and its content cannot be understood. It is sufficient for the will to become unintelligible for any reason (objective element), and this situation should not be based on the intention of the testator to revoke (animus revocandi). In that case, the destruction of a will has two elements, one positive and the other negative.
The positive element of the destruction of a will is its disappearance. Destruction of a will may be caused by various reasons. First of all, a natural event may cause the will to be destroyed. However, a will may be destroyed not only by natural events, but also by human causes. Indeed, it is also possible for the will to be destroyed due to the behaviour of third parties or the testator himself. The third party may destroy the will knowingly or unknowingly.
The negative element of the destruction of a will is the absence of the testator’s intention to revoke it (animus revocandi). According to the prevailing opinion in the doctrine, it is not necessary for the testator to destroy the will by his own actions, but he may also have it destroyed by third parties. However, the decision to destroy the will should not be left to this third party.
Pursuant to Article 543/II of the TCC, a will that is destroyed for whatever reason and whose content cannot be fully and completely determined is null and void. In our opinion, the destruction of the will should not lead to its nullity. In terms of the ideal law (de lege ferenda), it may be suggested to change the expression “becomes null and void” in Article 543/II of the TCC to “loses its effect”.
A will that is destroyed by accident or by the fault of a third party and the content of which is exactly and completely determined shall be valid. The important issue in this respect is to prove the content of the will exactly and completely. The burden of proof is on the persons who claim rights based on the will (Art. 6 TCC). All kinds of evidence may be utilized in order to prove the content of the will exactly and completely. It is even possible to have witnesses heard on this issue. At this point, the question arises whether it is necessary to prove the entire will word for word. According to the doctrine, the expressions “exactly and completely” in the provi-sion should not be understood literally, and “completely proving” should not be interpreted narrowly as the determination of the entire will and “exactly proving” as the determination of the relevant disposition word by word.
The second sentence of the second paragraph of Article 543 of the Turkish Civil Code reserves the right to claim compensation. The wording of the provision does not specify who may request compensation, from whom and on what grounds. However, as stated in the doctrine, the person in whose favour the disposi-tion was made shall claim this compensation from the third party who destroyed the will, based on Article 49 of the Turkish Code of Obligation (TCO). However, since it is not possible to determine the content of the will, the amount of damage is not entirely clear. Therefore, the compensation that the person in whose favour the disposition was made may claim will be limited to the expenses incurred for the determination of the content of the will.
The third party who destroys the will may also be one of the heirs of the testator. The heir who wilfully and unlawfully destroys the will is deprived of inheritance pursuant to Article 578/I-4 of the TCC. In order for this result to be realized, the heir must be unable to make this testamentary disposition again and must not have forgiven the heir who destroyed the will.
