In short
Collusion by the deceased speaks of the cancellation of an apparent sale that harms the heir. It does not tear up the text of reduction. The reserved share is in a separate writing.
The price, the actual use and the fact of closeness are the face of the proof.
Annulment of a will is an action of capacity and of form.
Cancellation of the title is looked at on the title and court papers in Ankara.
Related writings: cancellation of title.
After the person who left the inheritance dies, it is seen in the title record that the house was "sold" years earlier to one child. The sale price is not in the bank. The deceased lived in the house until they died. The other heirs are unaware of the transaction. This picture is called, among people, taking property out of the inheritance, and in legal language collusion by the deceased. The apparent transaction is a sale. The real transaction that is claimed is a gift. The claim does not invalidate every family sale. If the price was paid, and the purpose is not to deprive, the picture changes.
This writing recounts what collusion by the deceased is, the relation of cancellation and registration of title, and the difference from an action for reduction. It does not take the place of the writing the reserved share and reduction. That writing works the action of reduction of the minimum right of inheritance. The subject here is whether the appearance of a sale is real. The summary of the field is on the page inheritance law.
What is collusion by the deceased?
Collusion is the parties making a transaction in appearance and hiding their real will. In collusion by the deceased, the hidden will is a gift in most files. The apparent will is the sale on the title. The person who left the inheritance transfers the property to one heir, or to a third person, like a sale, in order to melt the share of the statutory heirs. The price is either not paid at all, or it does not fit the real value.
Judicial practice opens this picture to dispute even though there is the formal record of the land register. The aim is to sift out the concealing transaction that empties statutory heirship in practice. The aim is not to disregard every gift, or every transfer within the family. A real sale, a real price and the absence of a purpose of deprivation weaken the action.
Collusion by the deceased should not be mixed with the label of an "offence of concealing property" in the sense of criminal law. What is spoken of here is cancellation of the title and registration in civil law. A criminal characterisation is a separate regime and is not the subject of this text.
How is a gift in the appearance of a sale read?
The contract of sale at the land registry conforms to the official form. The form does not always cover a hidden gift. The proof runs, in most files, with indirect facts:
- Is there a bank trace that the sale price was paid?
- Do the income and the assets of the buyer carry the price?
- Is the price clearly detached from the real value of the immovable?
- Did the deceased continue, after the transfer, to use the property, to rent it, to live in it?
- Was the transfer made a short time before the death, and by being hidden from the other heirs?
- Is there a tense table of shares between the person in whose favour the transaction was made and the heirs who were deprived?
A single fact may not be enough. The sentence "my father was living in the house" does not bring cancellation by itself. The sentence "it says sale on the title, so it cannot be a gift" does not close the action by itself either. The writing a check before a transfer of title teaches how to read the annotations and the record. It does not take the place of the proof of collusion.
In real sales a discount within the family may be seen as well. The discount may carry the character of a gift, or it may be a commercial convenience. The separation is made by looking at the will and at the flow of the price. There is no definite list.
The difference from an action for reduction
Reduction cuts the part of a valid disposition that exceeds the reserved share. The transaction stands. The excess value returns to the estate, or is set off. In collusion by the deceased, the apparent sale is not counted as the real transaction. The title is cancelled. The property is registered to the estate. One says "reduce the excess". The other says "there is no sale, a gift was hidden".
This separation determines the choice of the petition. If the facts of collusion are weak, and the disposition is an open gift or a will, reduction may be the correct door. If the appearance of the sale is false, there is no price, and the purpose is to deprive, the door of collusion is spoken of. Melting the two in the same pot blurs the result of the request for the court. The writing on the reserved share recounts the calculation of reduction. This writing does not repeat that calculation.
In some files the two paths are thought of in stages. First collusion, if that does not work then reduction. This is not an obligatory order in every event. It is chosen according to the fact. The regimes of the period are discussed differently as well. The periods of reduction are in the writing on the reserved share. In the cancellation of collusion, the period is read with the nature and with the case law. It should not be said by heart "without a period" or "it has already become time-barred".
The relation of cancellation of title and registration
The practical result of the action is that the apparent sale is erased from the register and that the immovable returns in the name of the person who left the inheritance, that is, to the estate. Registration does not give the house as a gift to the claimant. The division of the estate, the dissolution of co-ownership, or the transfer of a share, stand separately. The decision of cancellation may give rise to a new co-ownership among the heirs.
Later sales may meet the provisions of the register that protect a third person in good faith. As the chain lengthens, the scope of cancellation may narrow. For this reason the chain of dates of the title record is part of the strategy of the action. Looking only at the first sale is not enough.
The certificate of heirship shows the capacity of a party. A claim of "I am the child" without the certificate, even if it is supported by the population record, leaves uncertainty in the procedure. A person who is not a statutory heir does not, as a rule, carry the same capacity in the action of collusion.
Who can open the action, and how does the process work?
The statutory heirs are the typical claimants of this action. The person in whose favour the collusive transaction was made is the defendant. The land-registry directorate may be shown as an opposing party because of the request for registration. The practical defendant is the person to whom the disposition was made. A creditor under a will and a statutory heir do not share the same protection in every file.
Typical steps:
- Taking the certificate of death and of heirship
- Drawing out the chain of the title record and the dates of the transfer
- Documenting the flow of the price, the income and the facts of use
- Separating, according to the fact, whether it is reduction or collusion
- An action of cancellation and registration in the civil court of first instance at the place of the immovable
- Examination of the witness, of the expert valuation and of the bank record
- The decision, and the division or the dissolution after the return to the estate
While the deceased is alive, this action cannot be opened as a rule. The transaction is made in that period. The action is spoken of after the death. Keeping the document early, so that the receipt and the witness of that period are not lost, does not mean not waiting for the day of the action.
For parcels titled in Ankara, the jurisdiction is, as a rule, in the civil court of first instance at the place where the immovable is. It should not be mixed with the dissolution that is heard in the civil court of peace.
The matrimonial-property regime of the deceased during the marriage does not close the cancellation of title automatically. The spouse's participation claim, or the annotation of the family home, may affect the defendant and the result of the request. If the divorce file and the inheritance file speak of the same title, the order is built according to the concrete request. This writing does not enlarge the property regime. It only marks the intersection. The financing of a third-person buyer — a bank credit and a mortgage — makes heavier the dispute of reliance on the register. The mortgage creditor may not be a necessary opposing party of the action of collusion. If the judgment affects the title, the position of the bank is read separately.
Where the record of collusion by the deceased is read from
The title record, the certificate of heirship and the cause of the transfer are read side by side. A limitation year that does not stand in the file is not written into this text. The office address does not choose the competent authority. An action for reduction is not put in the place of this cancellation. The cause of the transfer is read from the title record. The frame is read, with the title record in the file, from the Turkish Civil Code No. 4721.
The burden of proof is on the claimant: to show that the apparent sale was set up in order to hide a gift. The defendant strengthens the price and the real will of sale with counter-evidence. A witness is heard often in files within the family. A relative witness may not be enough by themselves. The expert of value makes the detachment of the price speak.
There is no memorised definite calendar of the period in this text. Learning, reliance on the register and the rights of a third person affect the file. Mixing it with the periods of reduction gives rise to a risk of a wrong refusal. An early assessment prevents the document from being lost. It should not create the complacency that "there is an unlimited period".
A list of attention:
- Do not declare every sale within the family to be collusion
- Do not use the petition of reduction in the place of collusion
- Do not ignore the receipt of the price, and do not invent one
- Do not forget the later person in good faith in the chain of title
- Do not assume the capacity of a party without the certificate of heirship
- Do not think, while the deceased is alive, "I opened an inheritance action"
Collusion by the deceased is a claim of a gift in the appearance of a sale. Reduction cuts the part of a valid disposition that exceeds the reserved share. The two doors are separate. The proof looks at the will under the title record. There is no promise of a result.
Lack of capacity, collation and reliance on the register
Collusion by the deceased is not the same action as a claim of lack of capacity or of excessive exploitation. Old age, illness or a dispute of guardianship ties the element of will of the transaction to a separate cause of cancellation. In collusion there is a will. The hidden will is a gift. In lack of capacity, a valid will is disputed. Piling the two carelessly in the same petition scatters the proof. Which fact weighs more is read with the medical record and with the date of the title.
Collation is the inclusion, in the account of the estate, of a disposition the person who left the inheritance made to an heir while alive. Collation does not cancel the title. It corrects the calculation of the share. Collusion does not keep the apparent sale standing. The sentence "it will be collated anyway, there is no need for cancellation" may stay incomplete if the appearance of the sale is false. Conversely, in a sale with a real price, the door of collation or of reduction may be more correct. The choice is according to the fact. This writing does not repeat the calculation of reduction.
Reliance on the register may protect the later buyer. If, after the first collusive transfer, the immovable was sold to a third person in good faith, the cancellation may not extend as far as that person. As the chain lengthens, the claimant perhaps speaks only of the price, or of another path of compensation. For this reason all the pages of the title record — the annotation, the attachment, the later sale — should be drawn out before the action. Looking only at the first contract of sale breaks the choice of the defendant.
A gift appearing on the title as a gift is not the typical subject of the action of collusion. An open gift slides to the ground of reduction and of collation. The claim of collusion is that the gift entered the guise of a sale. If there is no guise, the door of this writing closes. The door of the writing on the reserved share may open.
Hearing a witness is frequent in a file within the family. A neighbour, an officer of the registry, a bank officer or the person who gave care may support the fact of use and of the price. A witness who is a close relative does not have a judgment built on them alone. Written evidence — a receipt, a deed, a lease, an invoice — carries the witness. The reverse is not always valid.
A handwriting found after the death, a note of "I had actually sold it", or a sound recording, is discussed separately if it was not obtained in accordance with the procedure. Destroying a document weakens one's own defence as well. A notarial determination, a copy of the title record and a writing of the bank may be kept without waiting for the day of the action.
A closing
The sale on the title of the person who left the inheritance is not always a real sale. It is not always false either. The separation is made with the facts of the price, of the purpose and of the use. If the property returns to the estate, the division is a separate work. An action for the reserved share is not the subject of this writing. There the transaction is valid. Here the apparent transaction is disputed.
This text is general information. Without the concrete chain of title, the table of the heirs and the current judicial practice, a result of cancellation is not spoken of. The assessment changes according to the file.
Conclusion
This writing is for general information. The document, the period and the procedure of the concrete event should be read separately. There is no promise of a result by heart.