Vasiyetten Dönme – İzmir Avukat
Testament Nis it?
A will is defined as something a person wants done or to be done after their death. In our law, the act of a testator revoking their will is called withdrawal from the will. The testator can always withdraw their will. Even if the will explicitly states that it cannot be withdrawn, this clause is invalid.
Ways to Revoke a Will:
Our law clearly stipulates that a testator can revoke their will in various ways. These include revocation through a new will, cancellation, and revocation through subsequent dispositions.
1. With a New Will
Turkish Civil Code Article 542: “The testator may revoke a previous will at any time by making a new will in accordance with one of the forms prescribed by law. The will may be revoked in whole or in part.”
It is possible to revoke a will by choosing any of the forms prescribed by law. For example, a formal will can be revoked with a handwritten will, or a handwritten will can be revoked with a formal will. There is no rule or requirement that a formal will can only be revoked with another formal will, or a handwritten will only with a handwritten will.
2nd Civil Chamber of the Supreme Court of Appeals According to the decision dated 15.11.1982-/8099/8586; “The testator may revoke a will at any time using one of the methods prescribed by law (Civil Code, Article 489). Therefore, a person may revoke a formal will, if they wish, either by handwriting or by oral will, and may revoke a handwritten will by formal will. The discretion in this matter belongs to the testator.’
2. By Elimination
Turkish Civil Code Article 543: “The testator may revoke a will by destroying it. A will that is destroyed as a result of an accident or the fault of a third party, and whose contents cannot be determined exactly and completely, becomes null and void. The right to claim compensation is reserved.“
A will is not destroyed by the testator's own will, but rather by accident or the fault of a third party. For example, it can be destroyed by the intentional or negligent conduct of a third party. In such cases, the possibility of determining the content of the will should be investigated. This is because the primary objective is to fulfill the testator's last wishes. The invalidity of a will cannot be accepted without investigating the possibility of determining its content. This is explicitly stipulated in the legal provision (Turkish Civil Code, Article 543/2). Therefore, a will that is destroyed as a result of an accident or the fault of a third party, and whose content cannot be determined in whole or in part, becomes invalid. The contents and form of the will can be proven by any kind of evidence.
In some cases, the testator may mistakenly destroy or render the will illegible. In this situation, it is clear that the testator, having expressed their intention to make the will, does not wish to revoke it. Therefore, the will they have left is valid. As is known, destroying the copy in the testator's possession is not sufficient to revoke a formal will. Because a certified copy of the will is held by the official authorities. In the event of the person's death, the text of this will will be of importance. Therefore, it will not be possible to revoke a formally drawn up will by destruction. The testator must submit a petition stating that they are renouncing their previous will to the authority where the formal will is kept.
In a handwritten will, a specific part of the will can be revoked by the testator tearing it out or crossing out and initialing a portion of it. Oral wills, being exceptional cases and requiring the testator's death or inability to draw up a new will after their preparation, cannot be revoked by destruction. Therefore, the method of revoking a will by destruction is only possible with handwritten wills.
3. Subsequent Savings / Implicitly:
Turkish Civil Code Article 544 - "If the testator makes a new will without revoking a previous will, the subsequent will shall supersede the previous one unless it complements the previous will beyond any doubt. Unless otherwise specified in the will, a bequest of property shall be voided if the testator subsequently makes another disposition of that property that is incompatible with the bequest."“
For example, if a property specified in a will is later sold by the testator to someone else, this is an example of implicit restitution.
4. Inconsistencies between wills dated on different dates.
A testator may have wills dated at different times. In this case, it is necessary to examine the contents of the wills. The will with the later date is valid. For example, if the testator bequeathed his house to his son and then later bequeathed the same house to his daughter, there is a contradiction between the two wills, and it can be concluded that the later will completely revokes the first. This is because unless the new will unequivocally complements the previous one, the later will takes its place.
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