30 Apr CANCELLATION OF INHERITANCE
T.C
SUPREME
14. law office
BASE NO.2015/16925
DECISION NO.2016/8339
DATE OF DECISION.12.10.2016
COURT OF First Instance: Court of First Instance
06.08.2013 given by the plaintiff against the defendants with counsel on the petition is denied by default it is determined that Heritage Day on request at the end of the hearing; the case for the acceptance of the defendant … the defendant … the Deputy Attorney blog yargitayca examination and provision given 19.03.2015 at the time requested by the petition of Appeal has been decided upon the adoption of that she was once resolved by examining the file all the paperwork and within it:
decision
The case is related to the determination that the shipyard is submerged in debt in accordance with Article 605/2 of the TMK and the request to reject the inheritance provision.
Legator the plaintiff’s attorney, the plaintiff’s brother …’s debts by the due execution of the enforcement proceedings, excluding the interest of the deceased total excluding 130.000,00 TL debt with interest that is owed to the functioning of 200.000,00 TL has reached forfeit the inheritance of the estate were submerged in a denial of the debt by claiming that requested that the decision be given, but during the trial, the accused, the co-op, you owe it to, due to the closure by the plaintiff that the defendant have reported from the direction of a waiver of prosecution.
The defendant … has defended the dismissal of the lawsuit from the animosity due to the fact that the debt has been paid by the Cooperative in response to the petition.
The defendant … has defended the dismissal of the case.
The court decided to accept the case, and the verdict was appealed by the defendant’s deputies.
If the inability to pay is clearly defined or officially determined on the date of death of the testator, the inheritance is considered rejected. (TMK m. 605/2) Heirs, 610 of the TMK. unless there is also a written violation of the article, that is, they have tacitly accepted the inheritance, they can always ask for the determination of the person who left the inheritance without paying. TMK’s 606. the period specified in the article does not apply in this case. The case is brought against the creditors.
In case of refusal of the inheritance, it is necessary to determine that the estate is in debt. The fact that the passive of the tereken is more than active indicates that the tereken is incapable of paying, and therefore the tereken is in debt. The inability of the testator to pay is determined by the date of death.
As of the date of death, all assets of the testator constitute his assets, and all debts constitute his liabilities. For this purpose, it is necessary to fully investigate all the assets belonging to the testator, to fully determine his debts and, as a result, to determine whether the shipwreck is submerged in debt. The competent court in this case is the court of residence of the creditors at the time the case was filed. In addition, in accordance with Article 39/2 of the statute on the implementation of the provisions of guardianship, trusteeship and inheritance of the TMK, the power of attorney must include the power of attorney for the denial of inheritance.
As for the concrete case in accordance with the principles described; The defendant … defended the Cooperative’s rejection of the case from the government due to the fact that the debt was paid. In this case, the court is required by Article 610 of the Turkish Civil Code. in accordance with the article, it is necessary to investigate whether a payment has been made to the defendant cooperative by the heirs, whether the dressmaker is owned and owned. It is not right to go to the conclusion by ignoring the mentioned point.
In addition, Article 312/1 of the Law on Civil Courts provides that the party who has declared a waiver or acceptance will be subject to the costs of the proceedings as if the case had been ruled against it. Although the deputy plaintiff has informed that he has waived his lawsuit against the defendant cooperative, it is unfair that the defendant cooperative is held responsible for the cost of the trial and the attorney’s fee.
On the other hand, the request to determine that the estate is in debt at the time of the death of the heir is not an eda case, but “heirs earn the inheritance as a whole by law with the death of the testator”, which leads to the fact that the inheritance is considered rejected due to the law, without the need for the heirs to disclose the will (TMK m. 599/1). it is a type of lawsuit aimed at determining a legal situation that is an exception to the legal rule. According to this nature, the victim is subject to payment. In case of acceptance or rejection, the victim’s power of attorney fee is also determined. (HMK article 326) While the court should take the victim’s fee, it is not correct to judge the relative fee.
In addition, the court has agreed that the power of attorney granted to the defendant’s attorney does not have special powers that include the rejection of the inheritance. It was not considered correct to make a decision in writing by examining the deficiency without focusing on other missing issues, without giving time for the plaintiff’s attorney to submit a power of attorney containing a special authorization and completing this deficiency; for these reasons, the provision had to be overturned.
CONCLUSION: For the above reasons, it was decided unanimously on 12.10.2016 that the provision would be OVERTURNED with the acceptance of the defendant’s attorneys’ appeals, that the amount deposited in advance would be returned to the depositors on request, and that the way to correct the decision would be open within 15 days of the notification of the decision.
You can read other articles and petition examples from clicking here.
No Comments