HOW TO INVESTIGATE THE ALLEGATION OF LEGAL INCOMPETENCE IN A DEED CANCELLATION CASE?
As stated in Article 15 of the Civil Code, since the person who does not have the power of discrimination (power of appeal) does not have a valid will, the transactions he/she will make cannot be concluded, and the good faith of the other party who transacts with the person who does not have the power of appeal does not make that transaction valid (Court of Cassation 1st HD – Decision: 2016/2135, 11.06.1941 dated 4/21 numbered Court of Cassation CPC).
In the case of cancellation and registration of the title deed based on the ground of incompetence, whether the title deed transfer is unlawful or not is investigated as follows (Court of Cassation 1st HD Decision: 2016/4228):
First of all, all the evidence provided by the parties shall be collected and brought to the file of the title deed cancellation and registration case.
While listening to the witnesses of the parties, detailed, explanatory and satisfactory concrete information regarding the fact of capacity is obtained.
All medical documents related to the alleged incapacitated person are brought to the case file and examined. All medical reports, patient observation papers, prescriptions, film graphics of the alleged incapacitated person must be brought.
Since incompetence and lack of appellate capacity depend not only on biological reasons such as minority, mental illness, mental weakness, intoxication, but also on psychological factors such as consciousness, cognition and will, the determination of biological and related psychological reasons such as mental illness, mental weakness requires special and technical knowledge outside the profession of judge. Therefore, a scientific medical report should be obtained to determine whether the person has the capacity to act. In particular, the 4th Specialised Department of the Forensic Medicine Institution is an expert in preparing medical reports on the person’s capacity.
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