Author Note: This article has been drafted in terms of Turkish Law.

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REDUCTION AND ITS CALCULATION IN SUCCESSION LAW

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What is the definition of reduction under Turkish Law?

 

Reduction, under Turkish Law, is the request of the successor whose succession share is breached by the gains made by the deceased to eliminate the forced heirship. This is regulated by the Turkish Civil Code.

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Who may request reduction?

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Reduction protects the successors whose succession share protected under forced heirship have been breached. Only successors with forced heirship rights may request reduction. The descendants, mother, father and surviving spouse have forced heirship rights. The people who have forced heirship are as follows:

• Half of the legal succession share for descendants, 

• One quarter of the legal succession share for each parent, 

• For the surviving spouse, the entire legal succession share if he/she is successor together with his/her descendants or parents, and three fourths of the succession share in other cases.

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Which transfers may be reduced? 

 

Transfers exceeding the disposable portion of the estate are subject to reduction. In this calculation, the debts of the deceased, funeral expenses, expenses for the sealing and writing of the estate, and three months' living expenses of the persons living with and cared for by the deceased are reduced from the estate.

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Transfers which are subject to reduction are as follows: 

• Inter-vivos transfers made by the deceased to the legal successor who loses his/her succession title in return for his/her succession share, transfers made by the deceased to his/her descendants by way of transfer of assets or release from debt, or uncommon and founding capital,

• Transfers made for the purpose of eliminating succession rights before death,

• Donations made by the deceased, with the reservation of the right of free withdrawal, and donations other than ordinary gifts made by the deceased within one year prior to his death,

• Obvious transfers made by the deceased for the purpose of eliminating the rules of forced heirship.

 

How to determine the sequence of transfers to be subject to reduction?

 

First of all, the reduction shall be made from the testamentary dispositions, and if this is not sufficient, the reduction shall be made from the inter-vivos transfers from the most recent to the oldest. According to this provision, first of all, the calculation will be made for testamentary dispositions, and if this is not sufficient, the reduction will only be applied to inter-vivos acquisitions.

 

When may reduction request be made?

 

There is a statute of limitations for filing a lawsuit. In case a lawsuit is filed after the expiration of this period, the judge dismisses the lawsuit. The successors who have the right to sue, within 1 year starting from the date they learn that their forced heirship rights are breached; in wills, it falls within ten years from the date of the will opening date and in other dispositions, ten years from the date of the opening of the estate. The time calculation must be taken into account once filing a lawsuit.

 

What should be considered in reduction calculation?

 

While making the calculation, to whom the transfer was made is very important. The part of the transfers made to the successors who has forced heirship rights by the testamentary disposition that exceeds the disposable part, which exceeds their forced heirship rules, shall be subject to reduction on a proportional basis. ​In the event that there is more than one testamentary disposition subject to reduction, the part of the transfer made to the successor who has forced heirship rights exceeding the forced heirship rules and the transfers made to persons who do not have the forced heirship rights shall be reducted proportionally.

 

In the event that the property subject to the will cannot be divided without diminishing its value, the beneficiary of the will has two rights. This person can either request the property to be given by paying the value of the part subject to reduction, or he/she can request the money equivalent to the value of the disposable part. 

 

In the event that the property subject to the disposition remains in the will beneficiary, it shall be decided to pay in money the value on the day of the decision of the part of the property that should be given to the will obligee due to reduction, otherwise within the disposition rate. These rules shall also apply to the reduction of inter vivos transfers.

 

It is also important whether the person in favor of whom a transfer is made is in good faith or not. If the person in whose favor the transfer has been made is in good faith, he/she is obliged to return the remaining amount. If this person is not in good faith, the provisions regarding the non-bona fide possessor's obligation to return shall apply. In furtherance, the person to whom a transfer has been made under the succession agreement may request the return of the consideration given to the deceased for the transfer at the rate of reduction.

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How a reduction is calculated? 

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In order to calculate the reduction, it is first necessary to find the net estate. The net estate is calculated by subtracting the assets from the passives of the deceased at the time of death. In order to make this calculation, the values of all properties that are inherited shall be calculated at the time of death. In this regard, the court determines the value of the properties by appointing an expert. In case there is money in the bank, etc. other than property, it is added to the net estate calculation, while in case there is a debt, it is deducted from the estate. Then, the sum of the assets in the succession that would have existed if there had been no transfer subject to reduction is found. This is called as "fictive estate" or "presumptive estate". Thereafter, according to the net estate, the amounts corresponding to the forced heirship rights of the successors are calculated and it is determined whether the forced heirship rights have been breached or not. Afterwards, in order to continue with the calculations, it is necessary to determine the fixed reduction rate. The fixed reduction rate is determined as follows: The fixed reduction rate  = violation of forced heirship rights / total amount of transfer. After this ratio is found, the current value of the forced heirship rights is calculated by applying it to the current values.