Muvazaa (collusion/simulated transaction), which constitutes one of the most complex forms of intentional discrepancy between real intent and declared will in Turkish Private Law, is defined in the general theory of the law of obligations as an agreement between the parties to create an appearance that does not accord with their true intent and produces no legal effect between them, with the intention of deceiving third parties. Regulated in general terms under the heading "Interpretation of Contracts and Collusive Transactions" in Article 19 of the Turkish Code of Obligations No. 6098 (TCO), this institution mandates that in determining the type and content of a contract, the true and common intent of the parties shall be taken as the basis, regardless of the words used by the parties, whether inadvertently or to conceal their real purpose. "Muris muvazaası" (collusion to deprive heirs of inheritance), which is not directly regulated by a single statutory provision in our positive law and derives its origin largely from the Decisions on the Unification of Jurisprudence of the Court of Cassation and scholarly doctrine, is, by its nature, a qualified and relative application form of Article 19 of the TCO specific to the law of succession.
Collusive dispositions executed by the deceased during their lifetime with the motive of diminishing the active assets of the estate and depriving certain heirs of their future inheritance rights generate a severe legal conflict between the deceased’s freedom of inter vivos disposition arising from the right of ownership and the principles of the heirs' right to inheritance and the protection of property. In order to resolve this conflict and eliminate the vacillations among lower courts, the Court of Cassation rendered the Milestone Decision on the Unification of Jurisprudence of the Grand General Assembly of the Court of Cassation, dated April 1, 1974, Merits No. 1974/1, Decision No. 1974/2 (YİBK), which serves as the cornerstone of Turkish Law of Succession.
The aforementioned Decision on the Unification of Jurisprudence of 1974 established muris muvazaası on the following concrete legal foundation: Where a person, with the purpose of depriving their heir of their inheritance right, declares their will before the land registry officer regarding a registered immovable—which they actually intend to donate—in accordance with a contract of sale or a contract for maintenance for life, all heirs whose inheritance rights are violated, whether they possess a reserved share or not, may file a lawsuit by asserting that the apparent contract of sale is collusive and that the concealed contract of donation lacks the official form required by law. With this decision, the Court of Cassation eliminated the requirement for plaintiff heirs to hold a reserved share in lawsuits to be filed against collusive transfers; going beyond the traditional reduction regime that merely protects the reserved share, it recognized an independent right of action allowing the restitution of the entire immovable unlawfully removed from the estate in proportion to the heirs' inheritance shares.
Prior to the adoption of the Decision on the Unification of Jurisprudence, severe dissenting opinions emerged in doctrine and judicial decisions. The legal views opposed to the decision argued that, pursuant to the principle of universal succession, the heirs are the successors of the deceased; in cases where the deceased could not assert the invalidity of their own contract, the heirs could not possess more rights than the deceased, and that the deceased's freedom of disposition outside the boundaries of reserved shares must be protected. However, the majority view of the Court of Cassation accepted that a distinct conflict of interest exists between the deceased, who is a party to the collusive transaction, and the heirs whose rights are infringed. Accordingly, heirs were granted the right to bring an action against the collusive transaction not in their capacity as legal successors, but in the capacity of "third parties" who are victims of and harmed by the collusion.
In order to speak of muris muvazaası and to ensure the acceptance of an action for the cancellation and registration of title deeds based on this legal ground, four fundamental elements determined in accordance with doctrine and settled judicial decisions must exist concurrently and simultaneously. In the absence of any of these elements, the disposition cannot be characterized as muris muvazaası, and the lawsuit filed shall be dismissed on the merits.
The apparent contract is the ostensible legal transaction entered into between the deceased and the party benefiting from the disposition, which is presented to the outside world as if it exists, even though it does not correspond to their true intent. In practice, the apparent transaction most frequently manifests as a "contract for the sale of immovable property" or a "contract for maintenance for life" executed before the land registry officer. In the apparent transaction, the parties do not possess a common intent to actually pay a purchase price or to provide a maintenance service. Because there is an intentional discrepancy between the declared will of the parties and their true desires, and because the apparent transaction is not intended to produce legal consequences, this transaction is absolutely null and void (mutlak butlan) from the beginning pursuant to Article 19 of the TCO.
The collusive agreement is the secret consensus concluded between the deceased and the counterparty to the contract, stipulating that the apparent legal transaction serves solely to deceive and shall create no legal bond or obligation between the parties. The existence of the collusive agreement is the fundamental reason for the invalidity of the apparent transaction. This agreement must be established at the latest at the time of, or prior to, the execution of the apparent contract. The collusive agreement, which is not subject to any official or written form requirement, may also be concluded implicitly (tacitly) or orally. By means of the collusive agreement, the parties explicitly accept that their declaration of intent regarding sale or maintenance directed toward the outside world is not binding.
The concealed contract is the actual legal transaction that the parties hide from the outside world, but genuinely desire to produce force and effect between themselves. In cases of muris muvazaası, the concealed transaction is invariably a "contract of donation". In accordance with the general principles of Turkish Law of Obligations, concealed transactions are, as a rule, deemed valid provided they fulfill the statutory validity conditions applicable to their own type.
However, the crux of the dispute arises precisely at this stage. Article 706 of the Turkish Civil Code (TCC), Article 237 of the Turkish Code of Obligations, and Article 26 of the Land Registry Law lay down a mandatory rule requiring that all contracts and promises of donation contemplating the transfer of ownership of registered immovables be made in official form, namely before the land registry officer. In muris muvazaası, although the parties actually intend to make a donation, they declare their will before the land registry officer as a sale or maintenance for life. Consequently, the concealed contract of donation intended by the parties was not made in official form; the official form at the land registry was devoted solely to the apparent sales transaction. This circumstance renders the concealed contract of donation absolutely null and void due to the lack of mandatory official form (TCO Art. 12, Art. 237; TCC Art. 706). As a result, the apparent transaction is invalid due to collusion, while the concealed transaction is invalid due to lack of official form, rendering the transfer completely groundless and acquiring the nature of a fraudulent/wrongful registration.
The most distinctive element that separates muris muvazaası from general relative collusion types and carries a constitutive character is the deceased's "intent to deprive heirs of inheritance" (motive and intent) while making the disposition. This psychological motive of the deceased may manifest as discriminating among children, depriving female children of inheritance, succumbing to the promptings and pressure of a second spouse or their children, or punishing an heir against whom animosity is held.
If it is determined that the deceased lacked the intent to deprive heirs of assets from the estate and that the transaction was based on a justified, reasonable, and acceptable ground, an action for title deed cancellation on the legal ground of muris muvazaası cannot be sustained, even if there is an exorbitant difference between the sale price shown in the registry and the actual market value of the immovable. The existence of the intent to deprive heirs of inheritance is evaluated ex officio by the judge within the unique circumstances of each concrete case.
The legal framework drawn by the YİBK dated April 1, 1974, No. 1/2, has delineated the subject matters of dispute in which the claim of muris muvazaası can be asserted. In line with the settled jurisprudence of the Court of Cassation, while certain legal transactions are evaluated within the scope of application of this institution, certain dispositions have been strictly excluded from its scope.
· Transfer of Registered Immovables by Presenting Them as Sales: The transfer by the deceased of an immovable or an undivided share in an immovable registered in their name, which they actually intend to donate, by presenting it as a sale before an official officer.
· Transfer Under the Guise of a Contract for Maintenance for Life: The transfer of ownership of an immovable under the cloak of a contract for maintenance for life for the purpose of donation, despite the absence of a genuine intention or need for care and maintenance.
· Transfers Made Using an Intermediate Owner ("Straw Man"): Successive transactions where the deceased, fearing a potential lawsuit if a direct transfer were made to the intended recipient, transfers the immovable to a trusted third party (intermediate owner) as if sold, who shortly thereafter transfers the immovable to the targeted heir or person.
· Collusive Transfers Between Co-owners: The transfer by the deceased of their share in a registered immovable subject to joint or communal ownership to other co-owners or heirs by presenting it as a sale with the intent to deceive.
· Transfer of Unregistered Immovables and Movable Assets: Unregistered immovables are legally treated as movable property. The transfer and donation of movable property and possession of unregistered immovables are not bound by a mandatory official form requirement. Even if the apparent contract of sale in the transfer of such assets is invalid due to collusion, the concealed contract of donation maintains its validity since it is not subject to formal requirements. In this case, a title cancellation lawsuit based on muris muvazaası cannot be filed; if the conditions are met, only provisions on reduction or equalization in inheritance can be applied.
· Wills and Testamentary Dispositions: A will is a testamentary disposition resulting from the unilateral declaration of intent of the deceased. Since it does not possess the nature of a contract based on the mutual agreement of two parties' declarations of intent and does not contain a collusive agreement, an action for muris muvazaası cannot be brought against wills. Heirs whose reserved shares are violated by a will are obliged to file an action for the nullity of the will or an action for reduction.
· Concealed Donation (Indirect Provision / Direct Purchase): Muris muvazaası cannot be applied where the deceased pays the purchase price of an immovable acquired from a third party out of their own pocket or bank account and registers the title directly in the name of the favored heir or third party. This is because no registered immovable owned by the deceased has left the estate. Here, the asset leaving the estate is money; therefore, heirs whose reserved shares are violated may only request the return of the unearned enrichment in the proportion of their reserved share by filing an action for reduction.
· Transfers of Cooperative Shares and Company Shares: The transfer of cooperative membership or company shares is in the nature of an assignment of personal rights. Since no transfer of registered immovable property is involved, it does not fall within the scope of the 1974 YİBK; these provisions are subject to reduction if the conditions are met.
· Transfers Within the Scope of Dower (Mehir) and Marriage Contracts: It is accepted that there is no intent to deprive heirs of inheritance in immovables transferred by the deceased to their spouse pursuant to a religious or legal marriage contract as a dower obligation, and claims of collusion will not be heard.
In actions for cancellation and registration based on muris muvazaası, the defendant has the opportunity to refute the lawsuit by asserting that there was no intention to deprive heirs of inheritance behind the transfer, and that the transaction was based on a justified, reasonable, moral, and legal ground. The General Assembly of Civil Chambers and the 1st Civil Chamber of the Court of Cassation apply extremely sensitive criteria when evaluating these defenses.
Pursuant to Article 611 of the Turkish Code of Obligations, a contract for maintenance for life is an onerous (reciprocal) contract imposing mutual rights and obligations on the parties. While the maintenance creditor (the deceased) assumes the obligation to transfer the ownership of their assets, the maintenance debtor undertakes the obligation to look after and care for them until death.
When the defendant asserts that the transfer was made within the scope of this contract, the court thoroughly investigates the following matters: the age of the deceased on the date of the contract, their physical and general state of health, family relations, the total amount of assets in their possession, the ratio of the transferred immovable to the entire estate and whether this ratio is reasonable, and whether the transferee actually fulfilled the maintenance obligation. If the deceased was elderly, ill, and in need of care, and the defendant actually looked after them, and the transferred immovable remains within a reasonable dimension considering the entire assets of the deceased, it is accepted that there was no intent to deprive heirs of inheritance, and the lawsuit is dismissed.
However, if the deceased possessed a high income, bank savings, and health insurance, and the care service was an ordinary assistance not exceeding the boundaries of the statutory maintenance obligation of family members (TCC Art. 364), yet the most valuable immovable in the estate was transferred, the maintenance contract defense does not gain validity, and it is concluded that the transfer was collusive.
Muris muvazaası cannot be applied in cases where the deceased, during their lifetime, distributed their assets or immovables among all heirs in accordance with equity and reasonable balances. According to the settled decisions of the Court of Cassation, if the deceased partitioned the immovables in the estate among the heirs during their lifetime for the purpose of equalization, providing each heir with an asset or opportunity proportional to their value to a greater or lesser extent, the primary goal here is not to deprive heirs of inheritance, but to distribute the estate during life, even if some transfers were shown as sales in the land registry. If it is proven that the deceased acted with the intent to distribute, the action for title cancellation and registration filed pursuant to the 1974 YİBK is dismissed due to the absence of intent to deprive the estate of assets.
One of the most common misconceptions encountered in practice and judicial proceedings is considering the distinct discrepancy between the price shown in the official deed of sale at the land registry and the actual market value of the immovable on the date of transfer as sufficient on its own to prove collusion and the intent to deprive heirs. The General Assembly of Civil Chambers and relevant Civil Chambers of the Court of Cassation have ruled in explicit terms that an exorbitant difference between the transfer price in the registry and the market value (for instance, differences reaching tenfold) may constitute "collusion in price", but is not sufficient on its own to prove the "intent to deprive heirs of inheritance."
The price difference is accepted as sufficient to prove collusion only when supported by concrete auxiliary facts such as the deceased having no need for money, the transferee lacking purchasing power, possession of the immovable not being transferred, and intra-family animosity.
Pursuant to general rules of procedural law (Code of Civil Procedure - CCP Art. 201), the parties to a contract and their universal successors are obliged to prove their claims of collusion against the contract only by written document (deed or counter-deed). However, the exception to this rule applies in actions for title cancellation and registration based on muris muvazaası.
An heir whose inheritance right is violated due to a collusive transaction files this lawsuit not in the capacity of a successor to the deceased, but in the capacity of a "third party" who is outside the collusive transaction and harmed by it. It is contrary to the ordinary course of life for plaintiff heirs, who are not parties to and were not informed of the collusive agreement secretly concluded between the deceased and the defendant, to possess a written document. On this legal ground, the Court of Cassation has recognized full freedom of evidence for plaintiff heirs in lawsuits based on muris muvazaası. Plaintiffs may prove the claim of collusion through witness testimony, expert witness examinations, judicial discovery, bank movements, family correspondence, and all types of discretionary evidence.
The burden of proof, pursuant to CCP Art. 190 and TCC Art. 6, belongs to the plaintiff heir who asserts the existence of the collusive transaction and the intent to deprive heirs of inheritance. The plaintiff party must demonstrate with convincing evidence that the true intent of the deceased was donation, not sale. The 1st Civil Chamber of the Court of Cassation evaluates the following concrete facts as presumptions of collusion in determining the intent to deprive heirs:
· Deceased Having No Need to Sell: The deceased having a regular monthly income, retirement pension, bank savings, or other income-generating properties; lacking a justified and reasonable cause requiring urgent cash needs such as purchasing, maintenance, or medical treatment.
· Defendant Party Lacking Financial Purchasing Power: The financial impossibility for the defendant transferee to have accumulated that amount of savings or to pay the purchase price on the transfer date given their financial situation.
· Non-Transfer of Possession of the Immovable: Despite an official sale or maintenance transfer being executed at the land registry, the possession of the immovable not being delivered to the defendant, and the deceased continuing to reside in that immovable or personally collect rental income until their death.
· Intra-Family Relations and Socio-Cultural Structure: The societal or familial attitude of the deceased aimed at depriving female children of inheritance, or experiencing animosity with children from a first marriage while being under the extreme influence and prompting of a second spouse or children born later.
· Fate of the Transfer Price and Suspicious Money Movements: Determination that the money shown as the sale price did not enter the bank accounts of the deceased, could not be traced in official records, or was withdrawn and made to disappear immediately prior to the transfer.
Correctly determining the legal remedies that can be pursued against dispositions made by the deceased during their lifetime is extremely critical for preventing loss of rights. Depending on the type of defect and legal nature of the transaction, an action for title cancellation and registration based on muris muvazaası, an action for reduction, or an action for equalization in inheritance will come to the fore.
|
Legal Evaluation Criterion |
Action for Cancellation Based on Muris Muvazaası |
Action for Reduction in Inheritance Law |
Action for Equalization (Return) in Inheritance |
|
Legal Basis |
TCO Art. 19, TCC Art. 706 and YİBK dated 01.04.1974, No. 1/2 |
TCC Art. 560 – 571 provisions |
TCC Art. 669 – 675 provisions |
|
Nature of Transaction Subject to Lawsuit |
Transactions that do not accord with the parties' intent, are collusive, and are void ab initio (invalid) |
Dispositions that are fully valid in law, but violate the limits of reserved shares |
Valid inter vivos provisions made by the deceased to statutory heirs on account of their inheritance share |
|
Persons Possessing Standing to Sue |
All statutory and appointed heirs whose inheritance rights are violated, whether possessing a reserved share or not |
Only heirs with reserved shares (Descendants, Spouse, Parents) |
Only statutory heirs (especially descendants of the deceased) |
|
Statute of Limitations and Preemptive Time Limits |
Not subject to any statute of limitations or preemptive time limit; can be filed at any time |
Preemptive period of 1 year from discovery, and in any case 10 years from the opening of succession |
10-year statute of limitations from the date of partition of the inheritance |
|
Competent and Authorized Court |
Civil Court of First Instance / Court of the place where the immovable is located (Exclusive Jurisdiction) |
Civil Court of First Instance / Court of the last domicile of the deceased |
Civil Court of First Instance or Civil Court of Peace (Place where succession opens) |
|
Legal Consequences of the Judgment |
Total cancellation of collusive title deed, registration in proportion to inheritance share, and return of property to estate |
Transaction is not cancelled entirely; reduction is made in proportion to the part exceeding the reserved share, or paid in cash |
Equalization of the provision in kind or in cash by deducting it from the share in the estate |
Prior to filing a lawsuit, it may not always be possible to determine with certainty whether the transaction conducted by the deceased was a collusive sale or a valid donation that violated reserved shares. If an heir directly files a lawsuit for muris muvazaası and the court dismisses the suit by determining that the transaction was not collusive but a valid donation, the time limit for filing a reduction lawsuit (a 1-year preemptive period) may have expired in the meantime.
To prevent such severe losses of rights, Article 111 of the Code of Civil Procedure provides an opportunity. The plaintiff heir may assert their claims successively (gradually) in the same complaint. In a successive lawsuit, the primary claim (first tier) is title cancellation and registration due to muris muvazaası; the secondary claim (second tier) is reduction in the proportion of the reserved share in the event that the claim of collusion is not accepted.
Pursuant to CCP Art. 111, the court primarily examines the primary claim, which is the allegation of muris muvazaası. If the existence of collusion is proven, it decrees title cancellation and does not examine the second claim. If collusion cannot be proven, it dismisses the primary claim and ex officio evaluates the reduction claim in the second tier on the merits. Thus, time-barring of the reduction action due to the preemptive period is definitively prevented.
In an action for title cancellation and registration based on muris muvazaası, the capacity of plaintiff belongs to persons who acquire the capacity of heir upon the death of the deceased and whose inheritance rights are violated due to the collusive disposition. Statutory heirs, appointed heirs, and adopted children have standing to sue without seeking the condition of holding a reserved share. Additionally, the bankruptcy administration or estate representative may also institute this action on behalf of the entire estate.
The capacity of defendant is directed against the person who directly acquired the immovable from the deceased through the collusive transaction, or against their heirs in the event of that person's death. If the immovable has been transferred to others through fraudulent chain transfers, all bad-faith transferees must be named as defendants. The plaintiff heir may file the lawsuit individually in proportion to their own inheritance share without the participation of other heirs; there is no mandatory joinder of parties requiring all heirs to sue together.
An action for title deed cancellation and registration based on muris muvazaası is grounded upon the right of ownership and the correction of fraudulent registration. Since a collusive transaction is void ab initio from the moment it is performed and carries no legal value, it does not convert into a valid legal transaction no matter how much time elapses. For this reason, lawsuits based on muris muvazaası are not subject to any statute of limitations or preemptive period. A lawsuit may be filed even if decades have passed since the death of the deceased. However, the death of the deceased is a prerequisite for filing this lawsuit; it is not possible to file a lawsuit on the allegation of collusion while the deceased is alive.
· Subject-Matter Competence: Pursuant to CCP Art. 2, regardless of the value or amount in dispute, the competent court in these actions arising from real rights in immovables relating to property rights is the Civil Court of First Instance.
· Venue (Territorial Jurisdiction): Pursuant to CCP Art. 12, the rule of exclusive jurisdiction applies to actions concerning real rights in immovables. The lawsuit must be filed in the Civil Court of First Instance of the place where the immovable is registered. This jurisdiction relates to public order and is observed ex officio by the court. If multiple immovables subject to the lawsuit are located in different provinces or districts, a lawsuit may be filed for all immovables in the court of the place where any one of the immovables is located.
Considering that the trial process may take a long time, it is vital to prevent the defendant from transferring the immovable to good-faith third parties and rendering the lawsuit moot. The plaintiff, pursuant to CCP Art. 389 et seq., should request an interim injunction on the land registry record for the "prevention of transfer and assignment to third parties," either without security or against appropriate security, in the statement of claim. An interim injunction annotated on the land register renders it legally impossible for fourth parties to assert claims of good faith.
The defendant who acquired the collusive immovable from the deceased may have transferred this immovable to a third party before the lawsuit was filed. Article 1023 of the Turkish Civil Code, through a mandatory provision, protects the acquisition of a third party who acquires a real right in reliance on the registration in the land register in good faith.
However, for the third party's acquisition to be protected, they must genuinely be in good faith—that is, they must not know that the registration in the land register is fraudulent and could not have known despite exercising the care expected of them. If the plaintiff heirs prove under TCC Art. 1024 that the third party was in bad faith (knew or should have known of the fraudulent registration), the third party's title registration is also cancelled.
The 1st Civil Chamber of the Court of Cassation looks for the following concrete facts to rebut the third party's presumption of good faith:
· The existence of a relationship of kinship, business partnership, or close neighborhood between the third party and the transferee or the deceased.
· An exorbitant difference between the market value of the immovable and the sale price to the third party.
· Transfers changing hands within very short intervals and transferees belonging to the same social circle.
· Traces of prior injunctions, annotations, or objections existing on the land registry record.
Exception of Forged Power of Attorney: If a forged power of attorney or forged identity document was used in the collusive transfer transaction, the registration becomes absolutely fraudulent. In transfers based on forged documents, no matter how good-faith the third party acquiring the immovable may be, they cannot benefit from the protection of TCC Art. 1023; the title deed registration is mandatorily cancelled.
In cases where restitution in kind becomes impossible—such as where the immovable has been sold to a good-faith third party pursuant to TCC Art. 1023, expropriated, or passed to someone else due to zoning applications—the lawsuit automatically or in accordance with a successive claim converts into an action for compensation (value). In this case, the court sentences the initial defendant who was a party to the collusive transaction to pay the amount corresponding to the plaintiff heirs' share based on the current market value of the immovable on the date of the lawsuit as compensation.
Ecrimisil is occupation compensation in the nature of damages arising from the unlawful use of a property without the consent of the rightful owner. Decisions for title cancellation and registration rendered due to muris muvazaası are not constitutive (inşai), but declaratory (izhari). Because the collusive transaction conducted is void ab initio, the defendant party is an unlawful possessor (haksız zilyet) from the moment they acquire the immovable.
The practical consequences of this legal determination are as follows:
· Commencement of Liability: Since the defendant who is party to a collusive transaction cannot be deemed a good-faith possessor, liability for ecrimisil begins from the date of death of the deceased.
· Non-Requirement of Prohibition from Enjoyment (İntifadan Men): In joint ownership, in order for co-owners to claim ecrimisil from one another, the condition of "prohibition from enjoyment" (notification to the defendant of the demand to benefit from the immovable via notice or lawsuit) is required as a rule. However, according to the settled jurisprudence of the Court of Cassation, the condition of prohibition from enjoyment is strictly not sought in actions for ecrimisil filed concurrently with or subsequent to title cancellation lawsuits based on muris muvazaası. Plaintiff heirs may directly claim retroactive unlawful occupation compensation starting from the date of the deceased's death (subject to the 5-year statute of limitations limit).
Muris muvazaası (collusion to deprive heirs of inheritance), which constitutes the broadest area of dispute in Turkish Succession Law practice, is a unique institution wherein the legal balance between the deceased's freedom of disposition during lifetime and the protection of heirs' property rights is established through judicial decisions. Systematized by the Court of Cassation's Decision on the Unification of Jurisprudence dated April 1, 1974, No. 1/2, this legal remedy aims to establish justice and equity by uncovering the true intent behind official records.
Success in muris muvazaası lawsuits depends on proving the concealed intent of donation behind the apparent onerous contract (sale or maintenance for life) and the intent to deprive heirs of inheritance with concrete facts. While the ability of plaintiff heirs to utilize all kinds of evidence and witness statements in their capacity as third parties facilitates the burden of proof, defenses that may be asserted by the defendant party, such as a maintenance contract or the intent to distribute, can directly affect the outcome of the lawsuit.
Although the lawsuit not being subject to a statute of limitations provides an important guarantee in terms of procedural law, it is of vital importance to secure an interim injunction on the land registry record as soon as the lawsuit is filed against the risk of immovables being transferred to good-faith third parties. Filing the lawsuit successively with a claim for reduction to avoid loss of rights, as well as claiming ecrimisil starting from the date of death of the deceased in addition to title cancellation, will ensure that violated inheritance rights are fully and holistically compensated.
