This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Muris Muvazaası Davası: Mirasçıları Zarara Uğratan Satışlar.
A simulated disposition by the deceased is a transfer in which property that was in truth given away is recorded at the land registry as a sale, in order to keep it from the heirs. The transaction is void both as the apparent sale and as the concealed gift. All the heirs may sue, whether or not they hold a reserved portion, and the action is subject to no time limit.
It is one of the commonest inheritance disputes in Turkey, arising most often where a parent wishes to favour one child. TMK means the Turkish Civil Code No. 4721 and TBK the Turkish Code of Obligations No. 6098.
How It Arises
The typical case: a father wishes to transfer property to one of three children — usually the one living with him or caring for him. If he does it openly as a gift, the other heirs can bring an action for abatement. To remove that risk he records it as a sale at a low price, though no money in fact changes hands.
The elements are:
- The apparent transaction. A transfer appearing on the register as a sale or exchange, the deed stating that the price was paid.
- The concealed transaction. The parties' true intention was a gift. No money was paid, or a symbolic sum far below market value.
- The intention to keep the property from the heirs. Assessed on criteria the Court of Cassation has applied consistently for decades.
How It Is Proved
Proof requires technical knowledge and careful handling of the evidence. Several indicators are weighed together:
- The stated price against the real value. A price far below market value at the date of transfer is a strong indicator; the value is established by expert assessment.
- Register and official records. The register entry at the date of transfer, the notarial records and any bank transfers. Whether the price passed through a bank is examined.
- The closeness of the parties. A transfer to a child or close relative strengthens the suspicion.
- Witness evidence. Neighbours, local officials and family members. Whether the deceased continued to live in the property after the transfer, and took no rent, is also weighed.
- The transferee's means. Whether the transferee had the income to pay the stated price at that date.
No single fact decides these cases. What persuades a court is the combination: no record of payment, a transferee without the means to pay, a price far below value, the deceased continuing to occupy, and a transfer made close to death.
Who May Sue
- Holders of a reserved portion — children, grandchildren, parents and the spouse.
- Other members of the community of heirs. Even without a reserved portion, anyone who is an heir may plead simulation.
- No time limit. Unlike abatement, there is no forfeiture period; the action may be brought at any time after the death. But where a third party has since acquired the property in good faith, the claim may be substantially restricted.
| Simulated disposition | Abatement | |
|---|---|---|
| Basis | TBK art. 19 and case law | TMK arts. 560 ff. |
| Who may sue | All heirs | Only heirs with a reserved portion |
| Time limit | None | 1 year from discovery, 10 years in any event |
| Status of the transaction | Void from the outset | Valid; the excess is reduced |
| Outcome | Cancellation of the title and re-registration | Reduction to the reserved portion |
| What must be proved | Simulation — the intent to defeat the heirs | That the reserved portion was encroached |
The two claims can be brought together in the alternative: simulation as the principal claim, abatement if it fails.
If the Claim Succeeds
- Cancellation and re-registration. The title transferred by the simulated transaction is cancelled; the property returns to the estate and is registered among the heirs in their legal shares.
- The whole transaction is void. Unlike abatement, it is not only the part encroaching on a reserved portion that falls, but the entire transfer.
- Redistribution. Once back in the estate, every heir takes their legal share.
- Damages. Heirs who suffered loss may in defined circumstances also claim damages.
"A gift made to look like a sale, effected by the deceased in order to keep property from the heirs, is void by reason of simulation."
Court of Cassation, settled case law
Frequently Asked Questions
What is a simulated disposition by the deceased?
A transfer recorded as a sale which was in truth a gift, made to keep property from the heirs. It is void both as the sale and as the gift.
Who can bring the claim?
All heirs, whether or not they hold a reserved portion.
Is there a time limit?
No. Unlike abatement, the claim is subject to no forfeiture period.
What if the property has been resold?
Where a third party acquired it in good faith, the claim may be substantially restricted — which is why an interim injunction should be sought at once.
Can I plead abatement as well?
Yes, and it is usual to plead them in the alternative: simulation first, abatement if that fails.