Inheritance Fraud-Based Title Deed Cancellation and Registration Lawsuit

LAWSUIT FOR CANCELLATION AND REGISTRATION OF TITLE DEED DUE TO HEIR SIMULATION

Introduction

One of the disputes frequently encountered in inheritance law is heir simulation, which arises after the death of the testator and is popularly known as “concealment of assets from heirs.” This situation occurs when the testator transfers a real property that he or she actually intends to donate by disguising it as a sale or a contract of care until death, with the purpose of concealing assets from the heirs. In such a case, the legal remedy to be pursued by the heirs is to file a lawsuit for cancellation and registration of the title deed due to heir simulation.

Legal Definition and Elements of Heir Simulation

Definition and Its Place in the Legal System

Heir simulation is accepted as a type of relative simulation specific to inheritance law. This concept refers to the concealment of the testator’s true intent of “donation” through an apparent “sale” or “contract of care until death.” In Turkish law, heir simulation is not a concept explicitly regulated by statute; however, it gained a legal basis through the Unification of Judgments Decision No. 1/2 dated 01.04.1974 of the Grand General Assembly of the Court of Cassation. This decision eliminated legal uncertainty by granting all heirs whose inheritance rights have been violated the right to file this lawsuit.

The basis of the lawsuit for cancellation and registration of the title deed due to heir simulation is essentially that the simulated transaction does not meet the legally required conditions, constitutes an abuse of rights, and therefore results in the usurpation of the heirs’ rights.

Elements Constituting Simulation

For a transaction to be qualified as heir simulation, four fundamental elements must coexist:

• Apparent Transaction: This is the transaction carried out with the intention of misleading third parties and does not correspond to the true intent of the parties. It is generally a sale or a contract of care until death executed at the land registry. Due to simulation, this transaction is absolutely null and void.
• Hidden Transaction: This is the transaction concealed behind the apparent transaction, reflecting the actual and true intent of the parties, which in heir simulation is always a donation agreement. However, since the donation of a registered real property is subject to an official form requirement, this hidden donation agreement is invalid due to lack of form.
• Simulation Agreement: This is the agreement made between the testator and the person acquiring the real property that the apparent transaction will not be valid between them.
• Purpose of Concealing Assets from Heirs (Intent to Deceive): In the Unification of Judgments Decision of the Court of Cassation, the essential condition is expressed as the testator having carried out this transaction with the motive of concealing assets from the heirs.

Parties to the Lawsuit, Its Nature and Scope

All heirs whose inheritance rights have been violated, whether they are reserved portion heirs or not, are entitled to file this lawsuit. Each heir may file the lawsuit individually based on their own inheritance right. However, those who have waived their inheritance rights through an inheritance waiver agreement, those who have rejected the inheritance, or those who have been disinherited cannot file this lawsuit. In such disputes, the defendant is the person who is a party to the simulated transaction and who acquired the real property from the testator. It is not possible to assert a claim of heir simulation against third parties who have acquired the real property in good faith by relying on the land registry.

A lawsuit for cancellation and registration of the title deed due to heir simulation is a lawsuit filed with the request to rectify an unlawful registration created in the land registry. As a result of this lawsuit, it is requested that the title deed registration be cancelled not in the name of the testator, but registered in the names of the heirs in proportion to their respective inheritance shares. The precedents of the Court of Cassation accept that this lawsuit may only be filed for registered real properties. The transfer of movable properties or unregistered real properties cannot be the subject of this lawsuit.

In lawsuits for cancellation and registration of the title deed due to heir simulation, the competent and authorized court is the civil court of first instance at the location of the real property. Furthermore, since the heirs will acquire ownership, namely real rights, following the death of the testator, this lawsuit may be filed at any time after death; in other words, the right to file the lawsuit is not subject to a statute of limitations.

Burden of Proof and Evaluation Criteria

Proof Mechanisms and Freedom of Evidence

In simulation lawsuits, the burden of proving the testator’s motive of concealing assets rests with the heirs who file the lawsuit. Since the heirs are not parties to the simulated agreement, they are considered “third parties” and therefore may benefit from the principle of freedom of evidence. Accordingly, it is possible to prove the claim by any kind of evidence, including witness testimony, in addition to written evidence.

Indicators of Simulation in the Precedents of the Court of Cassation

The Court of Cassation has identified a series of “factual presumptions” and “indicators” to determine the intent to conceal assets. These include:

• Age, Health Condition and Special Care Needs: The age and health condition of the testator at the date of transfer.
• Gross Disparity Between the Sale Price and the Actual Value: The apparent sale price being significantly lower than the actual value of the real property.
• Absence of Financial Need of the Testator: The testator having no need for money at the time of the transaction.
• Human Relations Between the Parties: The familial relationships between the testator, the transferee, and the other heirs.
• Ratio of the Transferred Property to the Estate: The transferred real property constituting a substantial portion of the testator’s entire assets.

Differences Between Heir Simulation and Reduction Lawsuit

Heir simulation and reduction lawsuits differ from each other in terms of their purposes, legal bases, parties, and procedures. A reduction lawsuit is a legal remedy to be pursued when the testator violates the inheritance shares of reserved portion substitution heirs by unjust or fraudulent dispositions, thereby harming their inheritance shares.

While the aim of a lawsuit for cancellation and registration of the title deed due to heir simulation is to annul the invalid disposition resulting from the simulated transaction and to ensure the return of the real property to the testator’s estate, namely to the heirs, in a reduction lawsuit, reserved portion heirs do not seek the complete annulment of the transaction but rather request the return of the portion corresponding to their reserved shares.

As stated in the definition section, only reserved portion heirs are entitled to file a reduction lawsuit. That is, under the Turkish Civil Code, persons other than the spouse, children, grandchildren, or parents do not have the right to request reduction. Furthermore, in terms of limitation periods, while a lawsuit for cancellation and registration of the title deed due to heir simulation may be filed at any time after the death of the testator, a reduction lawsuit must be filed within 1 year from the date of learning that the reserved portion has been violated and, in any case, within 10 years from the date of death.

These two lawsuits also differ in terms of the type of property involved. While a reduction lawsuit may concern any kind of movable or immovable property, a lawsuit for cancellation and registration of the title deed due to heir simulation may only concern registered real properties.

Although there are many differences between these two lawsuits, in practice, it is also possible to file them together in the alternative. This is because, in some cases, whether the testator acted with the intent to conceal assets cannot be determined by the heirs prior to the collection of evidence by the court. In such cases, all the conditions required for both lawsuits must cumulatively coexist, and the court will first examine the claim for cancellation and registration of the title deed due to heir simulation; if, as a result of the examination, no simulation or transaction carried out with the intent to conceal assets is found, or no such conviction is formed, then the protection of the inheritance shares of the reserved portion heirs will be sought through the rectification of the dispositions and transfers made.

Conclusion and Evaluation

A lawsuit for cancellation and registration of the title deed due to heir simulation is a vital instrument for the establishment of equity in Turkish inheritance law. The success of the lawsuit depends on the heirs’ ability to use the advantage of freedom of evidence to present the factual presumptions shaped by the precedents of the Court of Cassation together with all the characteristics of the concrete case. In practice, in order to ensure the broadest possible protection of the heirs’ rights, it is an appropriate strategy, in terms of both procedural economy and the prevention of loss of rights, to initially proceed with a request for cancellation and registration of the title deed based on a claim of heir simulation, and to subsequently assert a reduction claim in a gradual manner in case this request is not accepted. Indeed, this lawsuit aims to remove the veil between the testator’s apparent intent and the intent actually pursued, thereby revealing the hidden truth; achieving this aim requires the meticulous construction of a strong and multifaceted evidentiary framework supported by a consistent narrative encompassing all details of the case. Within this framework, heir simulation lawsuits serve as a complementary safeguard that protects not only individual inheritance rights but also the fundamental balance and justice objective of inheritance law.

Yours sincerely,
Atabay Law Office