Contract for renunciation of inheritance and its legal consequences (English) les effets juridique du pacte de renonciation à succession (Français)

In general, contracts for renunciation of inheritance have emerged in the literature of law due to the appearance of necessity for determining future purparties, and become transactions covered under the Inheritance Law, which were improved through practice since the 18th century. In fact, a contract for renunciation of inheritance is a contract of Inheritance Law, which is rejected by majority of law systems since it covers a future purparty, but is recognized by some law systems including ours.Contracts for renunciation of inheritance first emerged within the ancient German Law. This law adopted such a practice to eliminate purparties of marrying girls, and maintain properties of a family; and gained its current form through many revisions for centuries. Accordingly, we can state that the three country where contracts for renunciation of inheritance are fully applicable are Turkey, Germany, and Switzerland.Of course, these countries have adopted said practice in different ways. For example, the German Civil Law does not deem contracts for renunciation within scope of inheritance contracts, and classifies them as a different type of contracts. Thus, many different provisions have been adopted for contracts for renunciation of inheritance when compared to other inheritance contracts. In fact, when we consider that contracts for renunciation of inheritance are so different from other inheritance contracts in terms of the subject matter, provisions, and certain termination events thereof, it seems that said different practice adopted by German Civil Law is more appropriate than others.Although the Swiss Civil Code resembles to our Civil Code to a great extent, it differs from ours in one important aspect. Our Civil Code distinguishes between onerous and gratuitous contracts, and stipulates that onerous renunciation is influential on descendants unless otherwise stated while gratuitous renunciation is not. In contrary, the Swiss Civil Code puts that renunciation is influential on descendants, whether it be onerous or gratitious. Even if this minor arrangement leads to considerable differences in terms of conditions of a contract for renunciation.Since Roman law attaches importance to the will of legator, it does not accept any inheritance contracts which restrict the will of legators, and are more binding in nature. Testaments were deemed to be equivalent of law since a testament contains the last wills of legator. In countries such as France, Italy, England, Russia, etc. where the Roman law is influential, this law which was based on testamentsxvibecame influential, and contracts for renunciation of inheritance are rejected totally since it was not possible to waive from any right which is not acquired yet.A contract for renunciation of inheritance covers the renunciation, before death of legator, of the title by descent which is expected to be acquired upon death of legator. In other words, a possible heir waives from his/her future title by descent based on a contract concluded with legator. It was thus attempted to describe subject of a contract for renunciation of inheritance as an expected right, and describe status of renunciator as the termination of the period of awaiting. It was described that an individual who would possibly become an heir of legator in future is actually in a period of awaiting, and such period is terminated by means of a contract for renunciation. The title by descent which is likely to be acquired in future was claimed to be an anticipated right. For a contract for renunciation of inheritance, the concepts of anticipated right and period of awaiting play an important role in determining the subject matter of said contract. Under the light of these explanations, we can conclude that renunciation by a possible heir of his/her likely future title by descent constitutes the subject matter of a contract for renunciation of inheritance.An act of renunciation from inheritance was thus compared to other death-related acts, and was especially associated with the rejection of inheritance, annulment of inheritance, and transfer of purparty. In fact, renunciation of inheritance is a specific transaction of inheritance law, which is different from all other death-related acts from establishment to the consequences thereof. However, fulfillment of an act of renunciation via an inheritance contract makes a contract for renunciation closer to positive inheritance contracts in terms of the form, effect, and termination thereof. Accordingly, also due to reasons attributable to systematics of law, contracts for renunciation of inheritance are usually subject to the provisions to which positive inheritance contracts are subject. The most evident difference when compared to positive inheritance contracts is the fact that legator does not grant a right to the opposite party, but in contrary, accepts said declaration of renunciator. Consequently, this is the subject in which a contract for renunciation of inheritance differs from a positive inheritance contract at most.It is accepted by majority that it is the legator who performs a death-related act under a contract for renunciation of inheritance. Renunciator merely performs a legal act whereby he/she submits his/her declaration of renunciation to legator. In turn, legator accepts said declaration which would become effective upon his/her death, and thus performs a death-related act.Article 528 of the Civil Law contains mandatory provisions in terms of the competency and format which are required for conclusion of a contract for renunciation that is deemed as a death-related act for legator. However, some of these rules are applicable only for legator since it is the legator who performs a death-related act. Apart from these rules which are especially applicable in respect of competency, representation, and unenforceability, strict format-related rules such as preparation of an official testament are valid and enforceable for both parties. Generally speaking, different provisions were adopted for legators from validity to termination of a contract since legator is assumed to perform a death-related act. However, general rules shall apply for renunciator.xviiSuch a contract concluded by renunciator with legator whereby renunciator waives from his/her title by descent may be onerous (i.e. for a consideration) or gratuitous (i.e. for no consideration). As mentioned above, an onerous contract for renunciation has a negative impact on descendants of renunciator unless otherwise stated in the Civil Law. If renunciator concludes the contract for a consideration, then his/her descendants would also be deprived of the right to become heirs in future. However, parties may resolve otherwise in the contract for renunciation. If the contract is concluded for no consideration, then descendants of renunciator would not be affected therefrom, and, if descendants are heirs of legator with a reserved purparty, then they would enjoy said reserved purparty upon death of legator. The arrangement laid down in the Swiss Civil Law puts that renunciation would have a negative impact on descendants of renunciator whether it be for a consideration or not. In this regard, it is said that the arrangement laid down in our civil law is more appropriate for the Turkish society and family structure.Of course, said different arrangements regarding renunciation for and without a consideration would have different outcomes. In case of renunciation for no consideration, to say that descendants of renunciator would not be affected from renunciation in any manner is a case which has its own material consequences. As mentioned above, importance of the fact that renunciation for no consideration has no impact on descendants would reveal itself if descendants are heirs of legator with a reserved purparty. If descendants are not heirs of legator with a reserved purparty, then renunciation would have no impact on descendants whether renunciation is for a consideration or not. The reason of the fact that renunciation for a consideration has no impact on descendants is likewise the fact that descendants who are heirs of legator with a reserved purparty would be deprived of said reserved purparty.A contract for renunciation of inheritance may be for or without a consideration, and may also be partial or full. In this case, renunciator may waive from a part or full of his/her future purparty. Although the civil law stipulates complete renunciation, the doctrine and Supreme Court awards accept partial renunciation. As specified in the civil law, in case of complete renunciation, renunciator would not be entitled to be an heir in case of death of legator. However, in case of partial renunciation, renunciator might be entitled to be an heir in case of death of legator since renunciator waives from only a part of inheritance. In this case, renunciator may be entitled to be an heir of legator in proportional to his/her share in inheritance not waived.As clearly laid down in the civil law, a contract for renunciation may be concluded in favor of a third party. Provisions regarding renunciation conducted for a certain individual(s) as well as renunciation conducted for all other heirs are contained in Article 529 of the Civil Law. As a matter of fact, said arrangement means in both cases that renunciation would have no effect if the individuals in favor of whom renunciation is conducted are not heirs in any way. In other words, the law accepts existence of a dissolving condition as the presumption. This condition stipulates that individuals in favor of whom renunciation is conducted have to be heirs. The law puts that renunciation would have no impact if the individuals in favor of whom renunciation is conducted are not heirs. However, it was not specified whether renunciation would be valid or not if some of the individuals are not heirs inxviiicase of renunciation conducted in favor of more than one individuals. A doctrinal opinion puts that different solutions might be adopted based on whether renunciation is for a consideration or not. Another opinion defends that form of renunciation as for a consideration or not would have no effect. As generally accepted, share of renunciator would be shared among those in favor of whom renunciation is conducted, and who have become heirs. If none of the individuals in favor of whom renunciation is conducted becomes an heir, then renunciation would be unenforceable. The dissolving act accepted by the law is concerned with the fact that no one is an heir.A contract for renunciation may be concluded based on a dilatory condition in addition of a dissolving condition. In this case, a contract for renunciation would not take effect until occurrence of dilatory condition, and would only take effect upon death of legator.A contract for renunciation gives rise to different effects, both tangible and other, for both parties. First of all, renunciator would not be entitled to be an heir upon death of legator. However, this does not mean that hereditary ties are broken between legator and renunciator. Consequently, the opinion accepted by the Supreme Court is that renunciator could obtain a certificate of heirship. The degree to which legator can fulfill acts would increase by the extent of share of renunciator subject to failure of renunciator to gain the title by descent.Although, as also mentioned above, a contract for renunciation is a contract concluded by and between legator and renunciator, it has also impacts on third persons. For example, if renunciation is made for a consideration, then it would also have an impact on descendants of renunciator. In case of renunciation made in favor of an individual, it is deemed as assignment of an heir, and said individual would be an heir of legator upon death of legator. If said individual is not entitled to be an heir, then renunciation would have no effect. Furthermore, renunciation made in favor of heirs would be deemed to have been made in favor of common descendants, and if no individual becomes an heir, then renunciation would have no effect.Although we have indicated that renunciator would not be entitled to be an heir upon death of legator, this would not eliminate his/her liability toward creditors of legator or heirs who own a reserved purparty. As a matter of fact, legislator has granted a facility to creditors who failed to satisfy its receivables from heritage or other heirs, and held individuals, who renunciated inheritance for a consideration, liable for such receivables to the extent of consideration received. For this, the stipulation that such consideration should have been received during the last five years before death of legator might possibly be a mitigating condition for said liability. It is not possible to hold liable in this regard an individual who renunciated inheritance for no consideration. Liability is the case only for individuals who renunciated inheritance for a consideration.A right similar to that granted to creditor is also granted to heirs in cases where their reserved purparty is exceeded. Accordingly, if reserved purparty of heirs is infringed at the time when inheritance is disclosed, then an individual who has renunciated inheritance for a consideration would be held liable in proportion to thexixconsideration received. As can be seen, an individual who has renunciated inheritance for a consideration would also be held liable in this case. In both cases, it was stipulated that such a consideration would be required to be refunded based on the provisions regarding unjust enrichment. Only in this case, however, renunciator is granted a remedy to refund the consideration, and take part in sharing of inheritance. This remedy might be seen as a right granted to renunciator to terminate the contract unilaterally upon death of legator.In addition to such cases of termination of a contract for renunciation, it is also possible to terminate such a contract by means of a new contract to be concluded while both parties are alive. Furthermore, the right of legator to cancel the contract may even be reserved in a contract for renunciation for the purpose of ensuring that the contract may be terminated unilaterally. The right of renunciator to terminate the contract unilaterally while both parties are alive is the case only if legator has fulfilled his/her liability for a consideration assumed under the contract.Apart from other inheritance contracts, death of renunciator before legator would not annul a contract for renunciation. Because a contract for renunciation does not confer any benefits to renunciator, but in contrary creates a situation which is against renunciator. Consequently, a contract for renunciation would remain in effect in such a situation apart from positive inheritance contracts.A contract for renunciation concluded between married couples is terminated upon divorce, like other inheritance contracts because divorce would eliminate the heirship status between spouses.Apart from that, cases of nullity which are applicable for other death-related acts are also applicable for a contract for renunciation. We can group such cases of nullity as cancellability, final nullity, and absence. Impairments of will which we list for the cases of cancellability are specially regulated in the Civil Law for death-related acts apart from the Code of Obligations. However, said provisions shall be applicable for legator who fulfills a death-related act, and renunciator shall remain to be bound by impairments of will as listed in the Code of Obligations. A contract for renunciation may be cancelled in case of existence of any impairment of will. It is accepted that a contract for renunciation may be cancelled also in case of lesion like in the cases of impairments of will. Illegal and immoral conditions are the causes for cancellation, as clearly specified in the Law.The most fundamental case of nullity we can specify for a contract for renunciation is the fraudulent acts. There is another opinion which lists locandi causas and false records as the cases of nullity. However, the opinion is dominant that no final nullity may be accepted based on a locandi causa or false record for a contract which is concluded before a a public official pursuant to strict format conditions.As known, the case of absence would occur when one of tangible elements is not present. These elements are the imperative ones like the reading and execution of legator of a contract on his/her own.xxAs can be seen, the contract for renunciation of inheritance is a contract of inheritance law whereby a possible heir freely waives from her/his future title by descent on his/her own will, and legator freely accepts said renunciation. Operability of contracts for renunciation of inheritance is enhanced in practice since these contracts can be onerous or gratuitous, and partial or complete. Although it may be considered renunciation from a possible future title by descent might be disadvantageous, such a disadvantage would be eliminated since a contract for renunciation is concluded fully based on expression of intentions, and a party is able to understand the consequences of his/her renunciation in advance, and make his/her decision accordingly. Consequently, it has been beneficial and positive for Turkish law to include contracts for renunciation of inheritance in the Civil Law in spite of all of their uncertainties and deficiencies.