WILL DRAFTING CONDITIONS
A will is referred to as a disposition dependent on death. The reason for this is that a will takes effect after the death of the testator. In this case, death is a mandatory and actual element for a will to become valid.
1. Will
A will is a unilateral legal transaction dependent on death, and only the testator's declaration of intent is important. Since the testator is not bound to anyone, they may revoke, amend, or cancel their will at any time. According to the Turkish Civil Code, there are three types of wills:
a) Handwritten will: A handwritten will is the simplest and easiest type. The entire handwritten will must be written in the testator's own handwriting. Additionally, the will must include the date of preparation and the testator's signature.
b) Official will: This is a will prepared in the presence of an official responsible for drawing up wills in accordance with the conditions stipulated by law.
c) Oral will: This type of will can only be made in extraordinary and exceptional circumstances. An oral will must be put into writing by witnesses within a short period of time and submitted to the competent judge.
2. Subject of the Will
Wills can cover many issues. The most common type of will is one in which the testator leaves all or part of their estate to another person after their death. Such wills may take the form of appointing an heir or bequeathing a specific asset. Appointing an heir involves the testator leaving all or part of their estate to another person. In the case of bequeathing a specific asset, the subject of the death-based gift is the specific asset designated by the testator.
3. Freedom of Testamentary Disposition
Freedom of testamentary disposition is defined as the ability and authority of a person to dispose of their property after their death. However, the testator cannot dispose of the reserved shares of their legal heirs. In other words, as a rule, the reserved share rights of legal heirs must be preserved. Furthermore, the will must not violate the law, morality, or public order. In such a case, the will shall be deemed invalid. Another important point to consider when drafting a will is that the right to draft a will must be exercised personally and directly. A will cannot be drafted through a representative or agent under any circumstances.
4. Testamentary Capacity
Testamentary capacity is a special type of capacity to exercise rights and has two conditions. The first is the capacity to discern, and the second is the age requirement. These conditions must be present at the time the disposition is made. The power of discernment is the ability to act in a reasonable manner. In other words, a person has the power to understand their actions, their purposes and consequences, and to act accordingly. The ability to understand the value and importance of the disposition is sufficient for the power of discernment. The capacity to discern is a presumed characteristic. If it is claimed that the testator lacks the capacity to discern, the party making the claim is responsible for proving it. The age requirement for testamentary capacity is set at fifteen years of age by the Civil Code. This age requirement applies only to wills. In inheritance contracts, however, the age of majority is required.
5. Conclusion
The drafting of a will is subject to certain conditions, and if these conditions are not met, the will shall be invalid. For this reason, it is necessary to pay attention to the formal requirements when drafting a will. In addition, the will shall become valid upon the death of the testator. Upon the death of the testator, a case for the opening of the will must be filed with the competent civil court of first instance. Once the competent civil court of first instance has decided to open the will, a case for the execution of the will must be filed. This case will be filed with the competent district court, and the provisions of the will will be carried out through this case. Additionally, the legal heirs of the testator may raise objections regarding the drafting of the will in the competent district court and may assert these objections in the case for the annulment of the will. In a case for the annulment of a will, it may be argued that the testator was not of sound mind at the time the will was drawn up or that other formal requirements for the drawing up of the will were not met. However, any such claims must be proven with concrete evidence. Indeed, in claims that the testator was not of sound mind, the medications used by the testator, hospital reports, or expert reports must be presented. Otherwise, the objections raised will have no validity. In accordance with the freedom to draw up a will, individuals cannot be restricted from exercising this right. However, the legal heirs' reserved share rights cannot be violated when a will is drawn up. Heirs whose reserved shares have been violated may file a reduction lawsuit in the competent civil court. Accordingly, the violation of reserved shares can be prevented. If there is a will, it must be examined in detail. Accordingly, the necessary legal procedures must be carried out to ensure that the parties do not suffer any loss of rights.
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Av. Sinem Orhan (Dipl.-Jur.)
Av. Dr. Anıl Coşkun, LL.M
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