Foreign nationals who own property, hold financial assets, or have family ties in Turkey frequently face the question of how to ensure that their estate is managed according to their wishes after death. Drafting a will in Turkey is one of the most effective ways for a foreign individual to direct the distribution of assets, designate heirs, and minimize the risk of disputes among surviving family members. Turkish law provides a well-defined legal framework for testamentary dispositions, and foreign nationals are fully entitled to execute wills under this framework, subject to certain rules regarding capacity, form, and applicable law.
The legal foundation for wills in Turkey is found in the Turkish Civil Code No. 4721, specifically in Articles 502 through 544. These provisions regulate the capacity to make a will, the types of wills recognized by law, the formal requirements for each type, and the rules for revoking or amending a testamentary disposition. For foreign nationals, the Act on International Private and Procedural Law No. 5718 (MÖHUK) adds an additional layer of complexity by establishing conflict-of-laws rules that determine which country’s law governs the substance and form of the will.
Testamentary Capacity Under Turkish Law
The capacity to make a will is governed by Article 502 of the Turkish Civil Code. Under this provision, any person who has reached the age of fifteen and possesses the mental capacity to discern the nature and consequences of their actions may execute a valid will. Mental capacity, known as the power of discernment, requires that the testator understands the legal effects of the will and is acting voluntarily and without undue influence at the time the will is drafted.
Article 502 of the Turkish Civil Code: In order to make a will, the testator must have the capacity to discern and must have completed the age of fifteen.
For foreign nationals, however, the question of testamentary capacity is subject to an additional rule under Turkish private international law. Article 20, paragraph 5 of MÖHUK provides that the capacity to make a testamentary disposition is governed by the national law of the testator at the time the disposition is made. This means that a foreign national’s capacity to execute a will in Turkey is assessed according to the law of the country whose citizenship that person holds, rather than under Turkish law. For example, a French citizen who is seventeen years old would be considered to have testamentary capacity under both French law, which permits wills from the age of sixteen, and Turkish law, which sets the threshold at fifteen.
Types of Wills Recognized in Turkish Law
The Turkish Civil Code recognizes three types of wills, and no testamentary disposition made outside of these forms carries legal validity. These three types are the official will, the handwritten will, and the oral will. All three types carry equal legal weight, though they differ significantly in their formal requirements and the circumstances under which they may be executed.
The official will is the most secure and widely used form. It is prepared before a public official, who may be a notary public, a justice of the peace, or another official authorized by law, and requires the presence of two witnesses during the execution.
Article 532 of the Turkish Civil Code: An official will is drawn up by a public official with the participation of two witnesses. The public official may be a justice of the peace, a notary, or another official authorized by law for this purpose.
The testator communicates their wishes to the public official, who reduces them to writing. The testator then reads and signs the document, or if the testator is unable to read, the official reads the document aloud in the presence of the two witnesses. The witnesses then confirm in writing that the testator appeared to have the capacity to make the will and that the document reflects the testator’s freely expressed wishes. The witnesses are prohibited from being the testator’s spouse, descendants, ascendants, siblings, or the spouses of these individuals, as set out in Article 536 of the Turkish Civil Code.
For foreign nationals who do not speak Turkish, an official will can still be executed before a Turkish notary with the assistance of a sworn translator. The translator’s participation ensures that the testator’s wishes are accurately communicated and documented. The original document is retained by the notary, which provides a strong safeguard against loss, destruction, or tampering.
The Handwritten Will
The handwritten will offers a simpler alternative that does not require the involvement of a public official or witnesses. Under Article 538 of the Turkish Civil Code, a handwritten will must be written entirely by the testator’s own hand, from beginning to end, and must include the date of execution, specifying the year, month, and day, as well as the testator’s handwritten signature. Wills that are typed, printed, or written by another person do not qualify as valid handwritten wills and are subject to annulment.
Article 538 of the Turkish Civil Code: A handwritten will must be written from beginning to end by the testator’s own hand, must bear the date including year, month, and day, and must be signed by the testator.
The handwritten will is particularly relevant for foreign nationals because it can be written in any language. There is no requirement that the will be drafted in Turkish. A foreign national may execute a handwritten will in their native language, and this document will be recognized as valid in Turkey provided it meets the formal requirements of Article 538. The will may be deposited with a notary public, a justice of the peace, or another authorized official for safekeeping, though this step is not mandatory.
Despite its simplicity, the handwritten will carries certain risks. Because it is prepared without professional supervision, errors in form, such as an incomplete date, a missing signature, or the inclusion of text written by someone other than the testator, can render the entire document invalid. Courts apply the formal requirements strictly, and even minor deviations may result in an annulment action under Article 557 of the Turkish Civil Code.
The Oral Will
The oral will is an exceptional form of testamentary disposition that may be used only when the testator is unable to execute an official or handwritten will due to extraordinary circumstances such as imminent danger of death, interruption of communications, epidemic, or war. Under Article 539, the testator declares their last wishes to two witnesses, who are then tasked with recording those wishes in writing and submitting the document to a judge without delay.
Article 539 of the Turkish Civil Code: If the testator is unable to make an official or handwritten will due to extraordinary circumstances such as imminent danger of death, interruption of communications, illness, or war, the testator may make an oral will. The testator declares their last wishes to two witnesses and instructs them to record those wishes in writing or have them recorded.
The oral will is inherently temporary. If the extraordinary circumstances that necessitated it cease to exist, the oral will expires one month after conditions return to normal. Given its exceptional nature and limited duration, the oral will is rarely relevant for estate planning purposes but serves as a safety mechanism in emergency situations.
Applicable Law for Foreign Nationals
The question of which country’s law governs a will executed by a foreign national in Turkey is addressed by Article 20 of MÖHUK. The applicable law framework distinguishes between the substance, form, and capacity aspects of the testamentary disposition.
Regarding substance, inheritance is governed as a general rule by the national law of the deceased. However, for immovable property located in Turkey, Turkish law applies regardless of the nationality of the testator. This creates a split system in which different legal regimes may apply simultaneously to the same estate, depending on whether the assets in question are movable or immovable and where they are situated.
Article 20 of the Act on International Private and Procedural Law (MÖHUK): Inheritance is governed by the national law of the deceased. Turkish law applies to immovable property located in Turkey. The provisions relating to the grounds for the opening of the estate, the acquisition of inheritance, and the partition thereof are governed by the law of the country where the estate is located.
Regarding form, Turkey is a party to the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. Under this convention, a will is considered formally valid if it complies with the law of any one of several connecting factors, including the place where the will was executed, the testator’s habitual residence, the testator’s nationality at the time of execution or at the time of death, or, in the case of immovable property, the place where the property is situated. This liberal approach is designed to uphold the validity of wills wherever possible, reflecting the principle of favor testamenti.
As a practical consequence, a foreign national who executes a will in their home country in accordance with the laws of that country may rely on that will being recognized as formally valid in Turkey. Conversely, a will executed in Turkey before a Turkish notary will also be recognized, even if the testator is a foreign national, provided the Turkish formal requirements have been met.
Reserved Shares and Limitations on Testamentary Freedom
Turkish law does not grant the testator unlimited freedom to dispose of their estate. The Turkish Civil Code establishes reserved shares, known as saklı pay, for certain categories of legal heirs. These reserved shares represent a minimum portion of the estate that must be allocated to the surviving spouse, descendants, and parents of the deceased, regardless of the terms of the will. A will that encroaches upon these reserved shares may be challenged through a reduction action filed by the aggrieved heirs.
For foreign nationals with immovable property in Turkey, the reserved share rules under Turkish law apply directly, since Turkish law governs the inheritance of real estate located within the country. For movable assets, the reserved share rules of the testator’s national law typically apply. This dual structure means that foreign nationals with assets in multiple countries must carefully coordinate their testamentary planning to ensure that the will respects the reserved share requirements of each applicable legal system.
Probate and Execution of the Will
After the death of the testator, any will found among the deceased’s effects must be delivered to the competent magistrate court without delay. The court opens the will, notifies all known heirs and legatees, and issues a certified copy of the document to the relevant parties. If the will names an executor, that person assumes responsibility for administering the estate in accordance with the testator’s instructions, including the payment of debts, the distribution of specific bequests, and the partition of remaining assets among the heirs.
Foreign nationals whose wills were executed abroad must ensure that the document can be presented to the Turkish courts in proper form. This typically requires an apostille certification, a sworn Turkish translation, and in some cases, a separate recognition proceeding before the competent court in Turkey. The complexity of cross-border estate administration underscores the importance of professional legal guidance at the drafting stage, where the testator can take steps to simplify the eventual probate process.
Inheritance Lawyer in Istanbul – Attorney Ozan Soylu
Attorney Ozan Soylu is a practicing lawyer based in Istanbul, advising foreign nationals on the preparation of wills, testamentary planning, and inheritance matters under Turkish law. His practice covers the drafting of official and handwritten wills, coordination with notaries and translators, reserved share analysis, and estate administration involving assets located in Turkey.
For all legal matters concerning Turkish law, you can reach out to Attorney Ozan Soylu. Legal consultancy and representation services are provided with a dedicated approach for foreign nationals. To submit your questions, contact us.
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