WHAT IS COLLUSION AND INHERITANCE AVOIDANCE?
Collusion is the agreement of the parties to enter into a contract that does not conform to their real will in order to deceive third parties. And which, although apparently valid, is not valid between them. For example, the heir who transfers the immovable property to third parties. Through sale in the title deed in order to evade inheritance has made a collusive transaction. Because, the purpose of the apparent sale transaction of the parties is to conceal. The evasion of the inheritance. Therefore, both the apparent sale transaction and the contract made secretly (verbally or in writing) between the parties are invalid.
In order for the conditions of collusion to be fulfilled, the following three conditions must coexist:
-There must be a knowing and intentional incompatibility between the real intentions of the parties and the transactions they have made,
-There must be an intent to deceive third parties,
-The parties must agree on a collusive transaction between them.
-The subject of this article, ‘muris collusion’ (evasion of inheritance), is legally referred to as qualified (relative) collusion. There are two transactions in qualified collusion: The apparent transaction and the hidden transaction. The parties aim to deceive third parties through these two transactions. The apparent transaction does not reflect the real will of the parties and aims to deceive third parties. For example, third parties are intended to be deceived by transferring the property to be donated through a sale transaction. In collusive transactions, the real will of the parties is not reflected by the apparent transactions, but by the hidden transactions. In the example given above, the donation transaction is a hidden transaction.
HEIR COLLUSION (EVASION OF PROPERTY FROM INHERITANCE)
Muris’s collusion (evasion of inheritance). İs when a person presents his gratuitous gains. As a sale or a contract of maintenance until death in order to deprive his heirs of the right of inheritance. The main purpose here is to prevent. The heirs with reserved shares from receiving their inheritance shares. By filing a lawsuit for equalisation in the future. In other words, the heir wants to prevent his heirs from filing a lawsuit. İn the future by pretending that he has transferred the goods. He actually wants to donate in exchange for sale. Inheritance evasion lawsuit investigates. Whether there are four elements of collusion.
Apparent transaction (contract).
Collusion agreement.
Intention to deceive third parties (heirs).
Secret contract.
OSTENSIBLE TRANSACTION
The ostensible transaction appears in practice as a sale. Donation or a contract of maintenance until death. These transactions are transactions that are not. İn accordance with the real will of the heir. İn order to evade property from the heirs. And that do not have any judgement and result. For example, the purpose of the heir who transfers a house. To anyone in the title deed as if he donated it to anyone. İn order to evade the inheritance is to prevent the reserved. Shareholders from filing a lawsuit in the future.
COLLUSION AGREEMENT
A collusion agreement is an agreement between the heir and a third party. That the apparent contract is made only to deceive the heirs. The parties agree that the apparent transaction made for the purpose. Of evading the inheritance shall not have any judgement and result between them. This agreement may be verbal or in writing.
PURPOSE OF DECEIVING HEIRS
Another element of the muris collusion is that the transaction. İ.e. the contracts such as sales, etc., which the parties seemingly created. Are made with the purpose of deceiving the heirs. If the parties (the inheritor and the third party) do not inten. To deceive the heirs, a lawsuit for theft of property from inheritance cannot be filed regarding the transaction.
SECRET CONTRACT
It is a contract that reflects the true. Will of the heir and is hidden behind the apparent transaction. For example, the heir wants to donate his propert. But hides it behind the sales contract in order to deceive the heirs. Since the hidden contract (donation) is actually in accordance. With the real will of the parties, it is valid as a rule. Here, it is important whether the secret contract is subject to the form requirement or not. The secret transaction does not depend on the form for immovable and movable. Properties without title deeds. However, since it is subject to the official form requirement. For immovable properties with title deeds and this form is not complied with in the ‘secret contract’, it is invalid.
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