The purpose of the inheritance law is to answer the question of how and to which persons all the assets, together with the liabilities, will pass after the death of the testator. If there is a foreign element in the inheritance, such as the testator is a foreign national or the testator is not a foreign national, but the heritage in their estate is located abroad, the question of which law applies to share of the inheritance (partite the heritage) comes to the fore. Law No. 5718 on International Private and Procedural Law (IPPL) contains main regulations regarding these issues. Article 20 of IPPL, titled inheritance, regulates the law to be applied to inheritance with a foreign element and the law to be applied regarding the capacity and form of testamentary dispositions.
- Law Applicable to Inheritance with a Foreign Element
IPPL Art. 20/1 has set a general rule regarding which law will be applied to the inheritance that has a foreign element. According to the article, the inheritance is subject to the deceased’s national law. However, the provision of Art. 20/1 and its continuation stipulated some exceptions. Therefore, except for the cases listed as exceptions, as a general rule, the issues related to inheritance are subject to the national law of the testator. Cases such as the determination of legal heirs, legal purparties, forced heirs and their purparties, the reasons for deprivation of inheritance, the institution of debarment from the inheritance, the provisions of testamentary disposition can be given as examples of issues subject to national law.
IPPL Art. 20/1, which is the general rule, accepted the principle of citizenship in determining the law to be applied to inheritance. The question of which law will be applied in case the deceased is stateless, refugee or a citizen of more than one state comes to the fore. The answer to this question is regulated in IPPL Art. 4. Accordingly, for stateless persons and refugees, the law of the legal residence will be applied, and in cases where there is no legal residence, the law of habitual residence is applied, and in cases where there is no habitual residence, the law of the country where the stateless persons and refugees residing at the time of the lawsuit will be applied. In the case of having more than one citizenship, a dual distinction is made in Art. 4. Turkish law will be applied even if one of the multiple citizenships is Turkish citizenship. If one of the multiple citizenships is not Turkish citizenship, the law of the state with which it is more closely related will be applied. As can be seen, the citizenship of the inheritor comes into prominence in determining the law to be applied to the inheritance, and it does not matter which citizenship the heirs have.
- Immovable Property in Turkey
The first exception to the general rule in IPPL Art. 20/1 concerns immovables in Turkey. Accordingly, Turkish law will be applied to immovables in Turkey. With this provision, different results emerge depending on the condition of the heritage in the estate. These results can be listed as follows:
- If the deceased is a Turkish citizen, Turkish law applies to all estates, regardless of whether an immovable property exists outside of Turkey in the estate. Because of IPPL Art. 20/1 stipulated that only the deceased’s national law would be applied, and it does not envisage a special rule regarding immovable properties outside of Turkey.
- If the deceased is a foreign citizen and if there are movable and immovable properties located in both Turkey and outside of Turkey, Turkish law will be applied for the immovable property in Turkey, and the national law of the testator will be applied for other properties in the estate.
Another issue that needs to be examined regarding the rule that Turkish law applies to immovables in Turkey is the case of the heir being a foreign citizen. Because Law No. 2644 on Land Registry (Law No. 2644) brings many rules regarding the acquisition of immovable property by foreigners in Turkey. Art. 35/1 of Law No. 2644 stipulates that foreign nationals can acquire real estate in Turkey, provided that they comply with the legal limits. However, the total area of immovables acquired by foreign nationals and limited independent and permanent rights in restricted real rights cannot exceed 10% of the district area subject to private property and 30 hectares throughout the country. Apart from Law No. 2644, some restrictions may be envisaged by other legislations. For instance, there are some restrictions brought by Law No. 2565 on Military Forbidden Zones and Security Zones.
B. Reasons for Opening the Succession, Acquisition, and Partition
The second exception to the general rule that the national law of the deceased will be applied to the inheritance is stipulated in IPPL Art. 20/2. According to this provision, “Provisions relating to the reasons of opening, acquisition, and distribution of succession shall be governed by the law of the state where the estate is located.” The purpose of this rule is that it is difficult for Turkish courts to apply the rules of the opening of the succession, acquisition, and division of inheritance in foreign laws. For instance, in Turkish law, the reasons for the opening of the succession are death, the disappearance of the person whose death is considered definitively, and absence. If the estate is located in a foreign country, whether the absence is the reason for the opening of the succession or whether there are other reasons for the opening of the succession is determined according to the law of that country.
Therefore, the acquisition of the inheritance will be determined according to the law of the country where the estate is located. The issue of division of inheritance comes to the fore in cases where the number of heirs is more than one. In this context, issues such as the way of universal succession, the community of heirs, the way of termination, if any, and how to be responsible for the debts of the inheritance are related to the division of the inheritance, and the law of the country where the estate is located is authorized in practice.
C. Heirless Estate in Turkey
The last exception to the general rule is regulated in IPPL Art. 20/3. According to this provision, the heirless estate in Turkey remains to the state. The determination that the estate does not have an heir will be made according to the general rule, that is, according to IPPL Art. 20/1. Accordingly, it will be determined whether there is an heir according to Turkish law for the immovables in Turkey and according to the national law of the testator for the remaining estate.
II. Public Order Intervention
As mentioned above, in the case of inheritance with foreign elements, the applicable law may be the law of a foreign state. In the case of the application of foreign state law, public order intervention may come to the fore. Public order intervention is regulated in IPPL Art. 5. According to this provision, if the foreign law to be applied to the case is in clear contradiction to the Turkish public order, the foreign law in question will not be applied and Turkish law will be applied instead, where necessary. However, it is accepted that the concept of public order intervention will be used if the situation that occurs when foreign law is applied reaches “to an intolerable measure in terms of our social and political values”. As a matter of fact, the Supreme Court is of the opinion that if there is a violation of the mandatory provisions in Turkish law, if the parties’ relationship with Turkey is weak, it is not possible to mention public order intervention. For instance, the 2nd Civil Chamber of the Supreme Court, in its decision in 1968, determined that the law to be applied was the law of foreign states, and accordingly, it found it appropriate not to give the surviving spouse a legal inheritance share on the movable estate. It also concluded that this result was not contrary to public order since the spouses were foreign, their marriage was made in a foreign country and they did not live in Turkey. However, if the spouses had married or resided in Turkey, it could have been a public order intervention.
III. Testamentary Disposition
Transaction and license regarding testamentary dispositions are regulated in IPPL Art. 20/4 and Art. 20/5. In addition, there is no provision in Art. 20 regarding the lex causae (law to be applied to the basis) of testamentary dispositions. For this reason, the general rule in IPPL Art. 20/1 will be applied while determining the lex causae of testamentary dispositions.
A.The Form of Disposition
In IPPL Art. 20/4, three alternative laws are envisaged regarding the form of testamentary disposition. These are; the law of the country where the testamentary disposition is made, the lex causae of the testamentary disposition, and the national law of the testator.
Due to the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (HCCH), the field of application of the IPPL Art. 20/4 is narrow. Because the HCCH will be taken as a basis in determining the law to be applied to the form, the provision of the IPPL Art. 20/4 will only be applied for inheritance contracts. The HCCH aimed to prevent the invalidity of the will in terms of form and to keep the will as long as possible by the favor testamenti principle. The first article of the contract stipulates which law will determine the formal validity of the will. According to this,
- If the testator’s disposition complies with the domestic law,
- If it complies with the domestic law of the state of which the testator is a citizen at the time of disposition or death,
- If it complies with the domestic law of the legal residence where the testator made the disposition of the will or the legal residence at the time of his death,
- If the place of habitual residence of the testator at the time of disposition or death complies with the domestic law,
- In the case of immovables, if these properties comply with the domestic law of the place where they are located the testament will be valid in form.
The law to be applied to the capacity to make testamentary dispositions is stipulated in IPPL Art. 20/5. According to this provision, the capacity to make testamentary dispositions is determined in accordance with the national law of the disposition at the time of the testamentary disposition. Following this, it is necessary to mention the subject of citation regulated in IPPL Art. 2/3. Because the issue of capacity to make testamentary dispositions is basically evaluated within the scope of the law of the person. Within the scope of the aforementioned IPPL Art. 2/3, it is regulated that the reference will be applied in disputes between the law of the person and the family law. In this context, what should be understood from the reference is whether the law to be applied when applying the conflict of laws rules is the rule of substantive law or the rule of conflict of laws. What should be understood from the law indicated by IPPL is the conflict of laws rules of the applicable law.
As a result, although the law to be applied to the capacity to make testamentary disposition is regulated under the title of inheritance within the framework of IPPL, the institution of reference should be applied in this regard, since the capacity to take legal action is essentially related to the law of the person and disposition on death is a legal action. In other words, the law that will be applied to the capacity to make a testamentary disposition is the law indicated by the conflict of laws rules of the national law at the time the person makes the testamentary disposition.
IV. Competent Court in Inheritance Cases with Foreign Elements
The international jurisdiction of Turkish courts is regulated in IPPL Art. 40 and later. According to this provision, the general rule is that the international jurisdiction of Turkish courts should be determined as the jurisdictional rule in domestic law. In IPPL Art. 43, the special authority has been determined for inheritance cases. According to this special jurisdiction, the court of the deceased’s last legal residence in Turkey is authorized in cases related to inheritance. If the deceased’s last place of legal residence is not in Turkey, the court of the place where the goods included in the estate are located is authorized in cases related to inheritance.
While evaluating the determination of the special-general authority rule, a system as in national law was not adopted in IPPL. According to this system, first of all, it is necessary to check whether there is a special authorized court held in IPPL in accordance with the dispute with a foreign element. If there is, the case can only be brought in there. In other words, the plaintiff has no chance to file a lawsuit according to both the general authority rule and the special authority rule.
Another issue that should be mentioned under this title is that the foreign person requests a certificate of heirship in the inheritance with foreign elements. According to Turkish law, the certificate of inheritance can be obtained from the civil court of peace or notary publics. However, it is stipulated in the third paragraph of Art. 71/B of Law No. 1512 on Notary Public Law that the certificate of inheritance cannot be given if requested by foreigners. Due to this article of the law, foreigners will not be able to obtain a certificate of inheritance from a notary public. Therefore, the way that the foreign person should apply in order to obtain a certificate of inheritance is the way of applying to the civil court of peace.
As a result, which law will be applied to the inheritance containing foreign elements is regulated in IPPL Art. 20. In the first paragraph of the provision, the general rule is stipulated that the national law of the testator will be applied in matters related to inheritance. Exceptions to the general rule have been made for the provisions regarding the immovables in Turkey, the reasons for the opening of the inheritance, the acquisition and distribution of the inheritance, and the rule to be applied in terms of the heirless estate in Turkey. The last two paragraphs of the provision stipulate the law to be applied to the form and capacity of testamentary dispositions. However, HCCH will be applied for wills, and the provision regarding the form of the disposition in the IPPL will only be applied to the inheritance contract. IPPL Art. 43 stipulates the international jurisdiction of Turkish courts regarding inheritance cases. The person who will file a lawsuit for the inheritance with foreign elements will be able to file his case in the Turkish court indicated by this article, if there is no competent court in Turkey according to this article, the Turkish court will not have international jurisdiction and in this respect IPPL, Art. 40, where the general jurisdiction rule is stipulated, cannot be applied.