Some of the testamentary dispositions in material terms can only be made by a testament due to their unilateral legal characteristics. This is because, testamentary dispositions are realized with a unilateral declaration of will.
The other part must be made with an agreement of inheritance as it must be made as a contract. However, the testamentary dispositions can be arranged both as a testament and the agreement of the inheritance.
While the testament is a one-sided testamentary disposition, the agreement of inheritance is a contract as the name suggests. In addition, it is the bindingness that distinguishes the agreement of inheritance from the testament, which is another form of testamentary disposition. It is easier and possible to cancel the will testament after death.
The inheritance agreement is a testamentary transaction between the legator and the other party, and the freedom of testamentary disposition is limited by legal rules. The first limitation is the prohibition of violation of law and morality. On the other hand, freedom of testamentary disposition is also limited by the reserved portion rules.
The share of the cessionary with inheritance agreements is a contractual reserved portion, just like the heirs with reserved portions.
The provision of Article 503 of the Turkish Civil Code is as follows: "In order to make an inheritance agreement, it is necessary to have mental competency, have required age and not to be restricted." Accordingly, certain conditions are stipulated in order to make an inheritance agreement.
Again, the provision of Article 545 of the Turkish Civil Code shows the formal conditions of the inheritance agreement. According to this: "In order for the inheritance agreement to be valid, it must be arranged as an official will. The parties of the contract inform the official at the same time of their wishes and sign the contract in front of the official and two witnesses."
Inheritance agreements that do not meet the formal requirements will be invalid. In addition, since power of attorney and representation are not possible in testamentary dispositions, legal representatives is not authorized to do so instead of an incompetent person. However, the other party of the inheritance agreement that does not make testamentary disposition can make an inheritance agreement through the representative.
In the decision of the 16th Civil Chamber of the Court of Cassation dated 29.6.2018 and numbered 2016 / 6413E-2018 / 4434K is stated as follows: "On the other hand, the defendants and their partners stated that between the plaintiff and his inheritors, a notarized waive agreement was made with the date of 12.06.1973 and the number 3619, that the plaintiff did not have a right in the immovable subject to the case and defended the rejection of the case. The plaintiff stated that he was 17 years old according to the birth registration date of the agreement and that he was actually 16 years old, that he was registered by his father to the birth registration office, that he had to sign the agreement as a result of his father's pressure and that he did not receive any compensation in return for the agreement. Even if the court has established a written decision regarding the dismissal of the case by accepting that the plaintiff is over 18 years old at the time the agreement was made and the contract was officially concluded, the conclusion reached does not comply with the scope of the case.
Since the agreement of waive of inheritance (Art.528 of the TCC) is a type of inheritance agreement, it is obligatory to be made in the form of an official will. (TCC's article 545 and decision of joint chambers dated 11.02.1959, numbered 16/14)In order to conclude an inheritance agreement, one should have the mental competence and have required age and not be restricted. "Since the date of birth of the plaintiff is 02.11.1955 according to the birth record included in the file and there is no plaintiff as of the date of the inheritance agreement (he is 17 years old), the agreeement in question is and void." Although the inheritance agreement was made in the form of an official will, it was deemed invalid because the capacity requirement was not met.
Turkish Civil Code Article 514 is as follows: "The legator can make disposal within the limits of freedom of disposition, in all or part of his assets, through a testament or an inheritance agreement." According to this article, it is possible for the legator to disposal with a testament or an inheritance agreement within the limits of freedom of disposition. According to the second paragraph of the article, the part that he does not disposal will be left to the legal heirs.
Inheritance agreements can be positive or negative. Positive inheritance agreements are regulated in Article 527 of the Turkish Civil Code. "The legator can undertake the obligation to leave his inheritance or certain property to a person or a third person with an inheritance agreement."
There is a provision of Article 528 of the Turkish Civil Code regarding negative inheritance agreeement (waive). "The legator can make a waive agreement from the inheritance with an inheritor for free or by providing a compensation. The one who sign negative inheritance agreement loses the title of inheritor. The waive of the inheritance by providing a compensate also has consequences for the descendant of the waiver, unless otherwise stipulated in the agreement."
Accordingly, the heir loses the title of inheritance in case of waive and has consequences for the descendant, unless otherwise stipulated.
Due to the changes that occurred between the date of execution of the inheritance agreement and the date of death, the inheritance agreement may no longer be in accordance with the will of the legator and this situation reveals the need for termination.
However, the purpose of inheritance law is to ensure that the inheritance is made in accordance with the will of the legator. In very limited cases, the lawmaker provides the opportunity to terminate the inheritance agreement. In this context; inheritance agreements can be terminated by mutual agreement.
The provision of Article 546 of the Turkish Civil Code regulating the termination is as follows: “Inheritance agreement can always be terminated with the written agreement of the parties. If it is revealed that the person who has been appointed as an legal heir with the inheritance agreement or who has been left a certain property, acts against the legator after the inheritance agreement is the reason for debarment; the legator can unilaterally terminate the inheritance agreement. Unilateral termination is done in one of the forms stipulated by law for testaments."
Apart from the mutual agreement, the legator can unilaterally cancel the agreement, if the legal heir who appointed as heir acts as a reason for debarment from inheritance.