In the dispute subject to the decision of the Supreme Courty General Assembly of Civil Chambers dated 22.09.2010 and numbered E. 2010/2-379, K. 2010/413, the plaintiffs claimed that it was revealed in the determination of the inheritance lawsuit that the estate of the heir was in debt and therefore they rejected the inheritance and claimed a judicial disclaim of the inheritance. The District Court decided to dismiss the case on the grounds that since the rejection of the inheritance was not requested within the time limit, the plaintiffs would be deemed to have implicitly accepted the inheritance with the lawsuit filed and that the estate was not proved to be insolvent. The Supreme Court General Assembly of Civil Chambers reversed the decision of the District Court, stating that unless the heirs are deemed to have accepted the inheritance with the behaviours described in the second paragraph of Article 610 of the Turkish Civil Code, no declaration of will is required for the forfeiture to be effective, and that the lawsuit filed by the plaintiffs for the determination of the inheritance does not result in the conclusion that the plaintiffs implicitly accepted the inheritance. Although the aforementioned decision is an important decision in terms of both doctrine and practice as it is a decision of principle, it causes uncertainty in practice due to the fact that it does not explain in detail the connection and limits of the request for the determination of the inheritance and the lawsuit for the determination of the judicial disclaim of the inheritance, and the relationship between these two institutions and the real rejection of the inheritance. In addition, the judge’s duty of ex officio investigation regarding both legal institutions should also be clarified. Finally, it is important to consider the request for the determination of the inheritance and the lawsuit for the determination of the judicial disclaim of the inheritance together with the official bookkeeping institution regulated by Article 619 et seq. of the Turkish Civil Code in order to determine the intersection points of these three legal institutions. This study aims to clarify the distinctive features and intersection points of these legal institutions based on the decision of the General Supreme Courty General Assembly of Civil Chambers and to eliminate the uncertainties that may be caused by various disputes that have arisen or may arise in practice.
The decision of the Supreme Courty General Assembly of Civil Chambers dated 22.09.2010 and numbered E. 2010/2-379, K. 2010/413 is an important decision in terms of both doctrine and practice since it is a decision of principle the request for the determination of the inheritance and the judicial disclaim of the inheritance the interconnectedness and limits of the proceedings for the determination of does not explain in detail the relationship between these two institutions and the actual rejection period of the inheritance This leads to uncertainty in practice. In addition, both legal clarification of the ex officio investigation duty of the judge regarding the institution is required. Finally, the request for the determination of the inheritance and the forfeiture of the inheritance the case for the determination of the official status regulated by Article 619 et seq. of the Turkish Civil Code the intersection of these three legal institutions is considered together with the bookkeeping institution is important in terms of determining the points.
The lawsuit for the determination of the judicial disclaim of the inheritance is in the nature of a declaratory lawsuit. In this lawsuit, the judge is obliged to investigate ex officio whether the conditions for judicial disclaim have been fulfilled. In doing so, not only the active and passive elements of the estate shall be determined, but also the value of the active and passive elements at the date of death shall be determined. When evaluated within the scope of Article 303 of the CCP, in order for the decision regarding the determination of the judicial disclaim of the inheritance to be deemed as a final judgement in material terms and to have the quality of conclusive evidence, the parties, causes of action and the paragraph of judgement of the first case and the conclusion of the second case must be the same. In this respect, although theoretically problematic, it should be accepted that the determination judgement constitutes conclusive evidence also against other estate creditors. The fact that the judge is under the obligation of ex officio investigation in this case and the objection nature of the judicial refusal also support this view. In order to protect the rights of other estate creditors and to prevent damage to the trust in the institution of judicial disclaim, the procedure of notifying all creditors of the lawsuit by way of announcement, as in the case of keeping official books (Art. 621 TCC), may be adopted de lege ferenda. In the event that a request is made to keep an official ledger within the scope of Article 619 of the TCC, it is no longer useful and meaningful to file a lawsuit for the determination of the judicial disclaim of the inheritance.
The claim for the determination of the inheritance is in the nature of a protective measure and functions in determining the elements that constitute the inheritance as of the date of the death of the heir by eliminating the ignorance about the active and passive elements of the inheritance, taking protective measures for the transfer of the inheritance elements to the right holders or applying to the institution of refusal of inheritance. The request for the determination of the inheritance is not a lawsuit in nature, but a legal institution in the nature of evidence determination that aims a legal protection such as precautionary measures. Due to this nature, it is a non-contentious judicial matter. In the request for the determination of the inheritance, unlike the case for the determination of the forfeiture of the inheritance, it is sufficient to determine the active and passive elements in the inheritance. Since it is a non-contentious judicial proceeding, it is heard without an adversary and the determination of the probate does not have any effect on the rights and obligations in terms of material law. The insolvency determined in the request for the determination of the probate shall not be binding in terms of the case for the determination of the forfeiture. It should be accepted that a request for the determination of the inheritance can be made without a request for bookkeeping (writing of the estate) due to the wide possibility of action provided by Article 589 of the TCC in line with the principle of not being subject to the limited number principle. In this case, it cannot be said that the judge is under the obligation of ex officio investigation. However, with the authorisation and duty imposed by Article 589 of the TCC, the judge may conduct an ex officio investigation if deemed necessary. However, the judge is under the obligation of ex officio investigation in the determination of the inheritance and bookkeeping within the scope of special protection measures under Article 590 of the TCC. Lastly, the claim for the determination of the inheritance and the official bookkeeping institutions under Article 619 of the TCC are different from each other.
Claim For the Determination Of The Inheritance, The Lawsuit For The Determination Of The Judicial Disclaim Of The Inheritance, Official Bookkeeping, Real Diclaim of Inheritance, Protection Measures, Ex Officio Search
