Collusion is the act of deceiving property from heirs by disguising unpaid donations as sales or contracts of support until death, with the intention of depriving their heirs of their inheritance rights.
The decedent transfers their real estate to a chosen heir or a third party, depriving the other heirs of their inheritance shares. Indeed, in the sale of the real estate, either the price is not paid (the decedent’s intention, which is actually a donation, is shown as a sale at the land registry office), or there is a difference between the price paid at the land registry office and the actual price.
Those who have a legal interest in filing a lawsuit as a result of collusion by the decedent and who are qualified as heirs may file a lawsuit for the cancellation and registration of the title deed.
In cases filed for the cancellation and registration of title deeds based on collusion by the decedent, the true will of the decedent is the primary consideration. The decedent’s will may also be directed towards the sale. In determining this matter, the financial situation of the decedent, the financial situation of the inheritor, or the financial situation of the third party are the primary considerations. The criteria considered in the Court of Cassation decisions are as follows:
– Local traditions (if there is a general belief in the region that daughters will not receive a share of the inheritance)
– Social trends
– Whether the decedent had a justified and reasonable reason for entering into the contract
– The defendant’s economic strength
– The decedent’s economic strength
– The difference between the sales price and the actual price
– Domestic relations
A title deed cancellation and registration lawsuit filed as a result of the decedent’s collusion is not subject to the statute of limitations or statute of limitations. This claim can be brought at any time after the decedent’s death, without being subject to the statute of limitations. A title deed cancellation and registration lawsuit filed as a result of the decedent’s collusion can be proven with any type of evidence according to established case law.
The relevant Court of Cassation decision is as follows:
COURT OF APPEALS, 1ST CIVIL DIVISION, E. 2014/18830K. 2017/1517T. March 28, 2017
“DECISION: This case concerns a request for title deed cancellation and registration based on the legal grounds of collusion by the deceased.
The plaintiffs allege that their grandfather, …, who left a joint inheritance, transferred the warehouse section No. 1 and residence No. 2 on property numbered 1323, parcel 61, which he owned, to his defendant grandson, …, by selling them in order to conceal property from his heirs. The lawsuit filed by their mother, …, for the aforementioned assignment was dismissed. However, on appeal, the grounds for rejection were amended and upheld due to the deceased’s disinheritance. They asserted that they had the right to file a lawsuit, and that the assignment was collusive. They requested the cancellation of the title deed records of the contested independent units and their registration in their names in proportion to their inheritance shares.
The defendant claimed that he purchased the properties in question for 22,000 euros and that the deceased had paid the plaintiffs’ mother a debt of 22,000 euros. He stated that he sold the properties out of anger and made a substantial donation to the mosque in his hometown of …. He stated that he purchased them to prevent sales to third parties, and that the sale was genuine, thus arguing for the dismissal of the case.
The court dismissed the case on the grounds that the claim could not be substantiated.
From the contents of the file and the evidence collected, it is established that the deceased transferred a 2/6 share of warehouse No. 1 and the entire residence No. 2 in parcel No. 61, block 1323, to his defendant grandson …, by sale on September 17, 2004.
As is known, the collusion, defined in practice and doctrine as “coincidence of the deceased,” is a type of collusion that is proportional (qualified). In this collusion, the deceased genuinely intends to enter into a contract and transfer the deeded property. However, to deprive his heir of his right to inherit, he conceals his true intention and, in reality, donates the deeded property he intends to donate. The person transfers his/her real estate by expressing his/her will in the official contract executed at the land registry office, in accordance with a sale or death-care agreement.
In this case, as explained in established Court of Cassation precedents and the Unification of Jurisprudence Decision No. 1/2 dated April 1, 1974, since the apparent contract does not conform to the parties’ true will, and the secret donation contract lacks the formal requirements stipulated in Article 706 of the Turkish Civil Code (TCC), Article 237 of the Turkish Code of Obligations (TCC) (Article 213 of the Code of Obligations (TCC)), and Article 26 of the Land Registry Law, all heirs whose inheritance rights have been violated, whether or not they hold a reserved share, may file a lawsuit to have the official contract invalidated due to collusion and to have the land registry record created based on it annulled.
It should be noted immediately that the sound, fair, and correct resolution of such disputes depends on unequivocally revealing the true nature of the transfer made to the defendant—in other words, the true will and intent of the testator. Because identifying and clarifying the true will and intent, which is an internal matter and often concealed, is often difficult, it is crucial to not only collect all relevant evidence but also to evaluate it together and accurately. To this end, it is essential to utilize factors such as the customs and traditions of the country and region, social trends, the normal course of events, whether the testator had a justified and reasonable reason for entering into the contract, the defendant’s purchasing power, the difference between the sale price and the actual value at the date of the contract, and the human relationship between the parties and the testator.
As for the concrete incident, there is a previous hostility between the testator and the plaintiffs’ mother …, this can be understood from the decision of the Family Court dated 28/12/2004 and numbered 2003/218 E 2004/923 K, where the testator disinherited his daughter … with the will in the form of an arrangement dated 08/02/2005, which is relied upon as evidence by the plaintiff … The testator’s wife … was heard in the file numbered 2008/178 E of the 1st Civil Court of First Instance, where she stated that the testator transferred the independent sections no. 1 and 2, which are the subject of the lawsuit, free of charge because the testator was angry with their daughter …, the plaintiff’s witness … who was heard in the file at hand; The deceased stated that he had told her that there was no actual purchase or sale during his lifetime, and that there is no evidence in the file indicating that the deceased had a need to sell the property. When these matters are considered as a whole, it is understood that the assignment was fabricated and intended to defraud the heirs of their property.
Therefore, while the case should have been accepted considering that the fabrication was proven, the written decision based on a misconception is erroneous.
RESULT: The plaintiffs’ attorney’s appeal is valid for the reason explained. Upon acceptance, the judgment is REVERSED pursuant to Article 428 of Civil Procedure Law No. 1086 (by referring to the temporary Article 3 of Law No. 6100), and the appellants’ attorney is ordered to pay 1,480.00 TL in accordance with the Attorney Fee Tariff that entered into force on January 2, 2017. It was unanimously decided on 28.03.2017 that the hearing attorney’s fee be collected from the appellant and the advance fee be returned to the appellant.