I. WILL IN GENERAL
A will is a unilateral legal act in which a person makes gratuitous disposals of his/her property within the limits set by the law, with the legal effect after his/her death. A will is made by testament. A testament is a written declaration of will that includes testamentary dispositions and is made in accordance with the forms specified in the law and and can be revoked by the testator until death (Türk Hukuk Lûgatı, Türk Hukuk Kurumu, 3rd Edition, Ankara 1991, p. 354, Court of Cassation 14th Civil Chamber., E. 2016/13864, K. 2019/6362, D. 8.10.2019).
The will may be made in official form or in the handwriting of the heir or orally. (TCC.531). The official testament is drawn up by an official officer with the participation of two witnesses. The official officer may be a justice of the peace, a notary public or any other official authorized by law (TCC.532). The handwritten testament must be written and signed in the handwriting of the heir from the beginning to the end, indicating the year, month and day it was made. The handwritten will may be left to a notary public, a judge of peace or an authorized officer for safekeeping, either openly or closed (TCC.538). The oral will, which is the subject of our study, is an exceptional type of will used when it is not possible to make an official or handwritten testament due to exceptional circumstances.
II. ORAL WILL AND ITS CONDITIONS OF VALIDITY
If the testator is unable to make an official or handwritten testament due to exceptional circumstances such as danger of death, interruption of transportation, illness, war, etc., he/she may make an oral will. For this purpose, the testator explains his/her last wishes to two witnesses and obliges them to write or dictate a will in accordance with this statement (TCC.539).
A. Exceptional Circumstance and Failure to Make an Official or Handwritten Testament Due to this Exceptional Circumstance
Examples of exceptional circumstances are as follows: danger of death, interruption of transportation, illness and war (TCC.539). The word “such” in the article indicates that the list is not limited.
“In order for an oral will to be considered valid, the law stipulates that it must have been made in an exceptional situation such as danger of death, interruption of transportation, infectious disease, war. Having a heart disease (2nd Civil Chamber of the Court of Cassation decision dated 20.4.1965 and numbered 12572033), being ill with an internal disease (2nd Civil Chamber of the Court of Cassation decision dated 28.6.1965 and numbered 34693463) do not indicate the existence of these exceptional circumstances. In cases where it is possible to make an official or handwritten will as defined in the law, there is no exceptional circumstances (General Assembly of Court of Cassation decision dated 8.2.1969 and numbered 120594; 2nd Civil Chamber of the Court of Cassation decision dated 26.3.1957 and numbered 10561602). If there is no possibility to make a official will, but there is a possibility to make a written will, the existence of exceptional circumstances cannot be accepted” (2nd Civil Chamber of the Court of Cassation, E. 1992/7372, K. 1992/8705,D. 29.9.1992).
“…from the content of the will subject to the lawsuit, it is understood that the testator was in no condition to move, the hospital where he was treated was located in a central location with no transportation problems and considering the point reached in medicine, it is understood that an official will can be issued with the participation of the notary while the testator is alive, therefore the exceptional situation, which is the main condition for applying for an oral will, has not been occur. While the court should decide by taking into consideration that the conditions for making an oral will did not occur in the concrete case, it was not deemed correct to make a decision as written” (7th Civil Chamber of the Court of Cassation, E. 2022/1481, K. 2023/2792, D. 24.5.2023).
“…no facts have been proved which would make it impossible to make a will in the normal form. The death of the alleged testator did not occur because of a sudden accident. Even if the suddenness of the cerebral hemorrhage that caused the death is considered for a moment, it was always possible for this person, who was in the city when the will was made and had a telephone at home, to call the notary in the city, and the witnesses who testified to the will stated that the deceased Mustafa was not in danger of sudden death at that time. Moreover, the holiday on which will was made, 12/09/1963 was not a holiday date.” (2nd Civil Chamber of the Court of Cassation, E. 1965/1257, K. 1965/2033, D. 20.4.1965).
“It is understood that although the oral will was made on 13.2.1982, the death occurred on 17.2.1982. In that case, the work to be done by the court consists of determining whether the severe health conditions (“coma”) preventing the testator from making a will in official form or in handwriting continued within five days after the oral will was made. Because an oral will is an exceptional form of will and the main one is to make a will in other forms. In this case, for the case to be dismissed, it is absolutely necessary to determine whether the health conditions requiring the oral will to be issued continued within the five days until death. Deciding to dismiss the case with incomplete examination without taking this aspect into consideration is contrary to the Procedure and the Law” (2nd Civil Chamber of the Court of Cassation, E. 1986/9662, K. 1986/10198, D. 2.11.1986).
B. Witnesses Documenting the Last Will of the Inheritor and Presenting This Document to the Judge or Declaring the Last Will of the Inheritor to the Judge and Having It Recorded and Making These Statements Without Delay
The inheritor expresses his/her last wishes to two witnesses and assigns them the task of writing or dictating a will in accordance with this declaration (TCC.539/2). One of the witnesses appointed by the inheritor shall immediately write down the last wishes expressed to them, indicating the place, year, month, and day, sign the document and have the other witness sign it. Both shall submit the written document to a court of peace or a court of first instance without delay and declare to the judge that they consider the inheritor to be competent to make a will and that he has told them his/her last wishes in an exceptional situation. The witnesses, instead of issuing a document beforehand, may apply to the court without delay and declare the above-mentioned matters and have the last wishes of the heir recorded in a minute (TCC.540/1,2).
If the court to which the oral will is notified is not the civil court of peace of the place of residence of the inheritor, this court shall immediately send the oral will to the civil court of peace of the place of residence of the inheritor (Article 37/2 of the Regulation on the Implementation of the Custody, Guardianship, and Inheritance Provisions of the Turkish Civil Code).
“According to Article 539 of the TCC, the condition of ‘explaining the last wishes to two witnesses and assigning them’ was not fulfilled in the case. The testator only informed witness F. apart from that, the application was made to the court through the defendant’s attorney 7 days after the death of the testator, and pursuant to Article 540 of the TCC, the witnesses of the oral will are obliged to submit the will ‘together’ to the court ‘without delay’ or to declare the situation to the judge and have the record corrected. This rule is a mandatory provision regarding the validity of the will and its purpose is to prevent the loss of the rights of the heirs for various reasons. The testator died on 23.3.2011, the will was drawn up 5 days later and submitted to the court 7 days later, not by witnesses but by the defendant’s attorney. This situation cannot be reconciled with the provision stipulated in the law that ‘both witnesses together’ and ‘without delay’” (3rd Civil Chamber of the Court of Cassation, E. 2013/15175, K. 2013/18291, T. 19.12.2013).
“The witnesses of the oral will are obliged to submit the will to the court together with the testament without delay or to declare the situation to the judge and have a report drawn up. This rule is a mandatory provision regarding the validity of the will. Its purpose is to prevent the loss of the rights of the heirs for various reasons. (743 TCC.art.487) The heir died on 11.6.1999. Although the will was drawn up on the same day, it was submitted to the court on 18.6.1999, seven days later. The behavior of the witnesses cannot be reconciled with the term “without delay” stipulated in the law. While the court should accept the lawsuit, it is contrary to the procedure and the law to establish a written judgment” (2ns Civil Chamber of the Court of Cassation, E. 2003/8702, K. 2003/10920, T. 16.7.2003).
“Pursuant to Article 540 of the TCC, the witnesses of the oral will are obliged to submit the will ‘together’ to the court ‘without delay’ or to declare the situation to the judge and have a report drawn up. This rule is a mandatory provision regarding the validity of the will and its purpose is to prevent the loss of the rights of the heirs for various reasons” (Court of Cassation 3rd HD., E. 2014/11363, K. 2014/15934, T. 5.12.2014).
“The purpose of the use of the expression “without delay” in the law is to prevent the will from being altered and the last wishes from being deviated from their purpose by the intervention of others. Therefore, it is necessary to make as much haste as possible. This period should be short, reasonable and in accordance within the nature of things. In the case, the testator died on 18.9.1978 and the witnesses appeared before the judge on 21.9.1978 and had a report prepared. Even if they went on 20.9.1978 and could not find the judge, as alleged, the aforementioned periods exceed the time limit for appearing before the judge “without delay” as stipulated by the Law. It has not been asserted and proved that the delay arose from an objective impossibility” (2nd Civil Chamber of the Court of Cassation, E. 1985/4279, K. 1985/4539, T. 9.5.1985).
“This is because the legislator of the law set this measure in order to prevent abuses, to prevent the witnesses from meeting with the heirs and to prevent deviation of the testator’s last wishes in this manner.” (2nd Civil Chamber of the Court of Cassation, E. 1992/7372, K. 1992/8705, T. 29.9.1992).
“The Court of Cassation ruled that the will should be annulled since the submission of the will to the court 17 days later and the application to the court seven days after the death is incompatible with the provision of the law (without delay) (Court of Cassation, E. 1989/2-296, K. 1989/388, T. 24.5.1989, 2nd Civil Chamber of the Court of Cassation, E. 1988/3329, K. 1988/4489, T. 21.4.1988).
“The court decided to annul the oral will by accepting the lawsuit on the grounds that the oral will subject to the lawsuit was recorded on 11.02.2012, that the deceased died on 14.02.2012, that they applied to the Civil Court of Peace on 20.02.2012, and the judgment was appealed by the defendant’s attorney. From the scope of the file, it is understood that the testator … made an oral will, it was written by the witnesses on 11.02.2012, and after the death of the testator on 14.02.2012, it was applied to the Civil Court of Peace on 20.02.2012. Pursuant to Article 539 of the TCC, it is explained that the verbal will shall be applied to the judge of the peace “without delay” pursuant to Article 540/1 of the same law. In the case, since the application was made to the Civil Court of Peace after 6 days, there was no inconsistency in the judgment” (3rd Civil Chamber of the Court of Cassation., E. 2015/1738, K. 2016/722, T. 26.1.2016).
The judge to whom the oral will is applied to record the oral will shall only record the will without discussing the conditions and validity of the oral will.
“As stated in Article 540 of the TCC No. 4721, the witnesses may either document the last wishes of the deceased and submit this document to the judge, or they may not submit the document they have prepared to the judge, but they may declare the last wishes of the deceased before the judge and ask for them to be recorded. In this case, a record shall be prepared before the judge in which these statements are written down one by one and this record shall be signed by the witnesses. The witnesses shall also declare the existence of an exceptional circumstance that prevents the testator from making another type of will and that they deem the testator competent to make testamentary dispositions, although this is not specified in Article 540/II of the TCC. ( Dural M. – Öz T., Türk Özel Hukuku Cilt IV Miras Hukuku, İstanbul 2013, p.97). As it can be understood from the literal interpretation of the law, the judge, who is applied to record the oral will, only records the will without discussing the conditions and validity of the oral will. Accordingly, in the case at hand, while the court judge should only record the will, it is not appropriate for the court judge to decide to dismiss the case on the grounds that the oral will does not meet the conditions in the law” (3rd Civil Chamber of the Court of Cassation, E. 2015/324, K. 2015/18740, T. 25.11.2015).
C. In the Event that the Person Applying for an Oral Will is in Military service or on a Transportation Vehicle Traveling Abroad or Being Treated in a Health Institution
If the applicant is in military service, an officer with the rank of lieutenant or higher; if the applicant is in a transportation vehicle traveling abroad, the responsible manager of that vehicle; if the applicant is being treated in a health institution, the most authorized manager of the health institution acts as a judge ( TCC.540/3).
According to the Regulation on the Implementation of the Provisions on Guardianship, Custody and Inheritance of the Turkish Civil Code (37/2): “if the person applying for oral testamentary remedy is in military service, a lieutenant or an officer of higher rank; if the person is being treated in health institutions, the head physician, if there is no head physician, his deputy, if there is none of them, the duty physician, if there is none of them, the hospital director; if the person applying for oral testamentary remedy is in a transportation vehicle traveling abroad, the driver of the bus, the pilot of the plane, the captain of the ship, the conductor of the train or their assistants act as a judge”.
“In the case, the oral will was made on 19.2.2002 at 19.30 in the room of the testator in the hospital where the testator was hospitalized, the testator died on 2.3.2002, the witnesses Sadık and Refik, to whom the will was presented, did not write this oral will at the time (during the presentation), they left the hospital, but it was determined that the oral will was written down by the witnesses on 4.3.2002 and was delivered to the most authorized manager of the health institution on the same day. However, it is understood that the condition of “submitting the oral will without delay” was not fulfilled, and it was not determined that the witnesses who considered the heir to be competent to make a will and that his last wishes were explained to them in an exceptional situation. In this respect, the oral will lacks the conditions of validity stipulated in the law. (TCC.art. 539-540) For the reasons and grounds explained, it was not correct to make a written decision while the oral will should be annulled” (2nd Civil Chamber of the Court of Cassation, E. 2005/6053, K. 2005/11085, T. 12.7.2005).
D. Impossibility to Make an Official or Handwritten Will After the Oral Will
This is a negative condition. If the testator subsequently has the opportunity to make a will in other forms, the oral will shall be null and void when one month has elapsed from this date (TCC. 541).
E. Inability to Make Acquisitions to Witnesses, the Witnesses’ Next of Kin, Siblings and their Spouses by Oral Will
Except for the requirement of literacy in the preparation of a official will, the prohibitions regarding witnesses also apply to witnesses in an oral will (TCC.539/3). Therefore, those who are incapacitated, those who are banned from public service by a criminal court decision, the spouse, next of kin and descendants, siblings and spouses of the testator may not participate as witnesses in the preparation of an oral will (TCC. 536/1). Witnesses, the witnesses’ next of kin and descendants, siblings and spouses of these persons may not be benefited by the oral will (TCC 536/2).