What Is a Sham Transaction by the Deceased Action in Turkey?

A sham transaction by the deceased ("muris muvazaası") refers to transactions the deceased structured — such as a sale or a lifelong care contract recorded in the land registry — to disguise a gift intended to deprive an heir of their inheritance right; these transactions are legally invalid due to the mismatch between the true intent and the apparent transaction.

The Legal Nature of the Sham

The basis of an action for a sham transaction by the deceased lies in the general sham-transaction provisions set out in Article 19 of Turkish Code of Obligations No. 6098. Where the parties actually intended a gift but recorded a sale price at the land registry, the apparent transaction — which does not correspond to the parties' true intent — is invalid.

Requirements for the Action

The deceased must have died before the action can be filed; the claimant must have heir status and must prove that the transaction between the deceased and the third party was in reality a gift — that is, that the sale price was not actually paid, or that the transaction was intended to deprive them of their inheritance right.

Burden of Proof and Evidence

The burden of proof lies with the claiming heir; however, given the nature of a sham transaction, it can be proven by any type of evidence (witnesses, correspondence, bank records, the deceased's financial situation, whether the sale price was actually paid, and the parties' age and health, among others). In Court of Cassation case law, an unrealistic sale price or the deceased's conduct excluding other heirs are treated as strong indicators.

The Subject of the Action: Cancellation and Re-Registration of Title

Once the sham is proven, the land registry record for the property at issue is cancelled and the property is returned to the estate, then re-registered among the heirs in proportion to their inheritance shares. The action cannot be filed against a third party who subsequently acquired the property in good faith; it can, however, be filed against a third party acting in bad faith.

Limitation Period

An action for a sham transaction by the deceased can be filed at any time after the deceased's death without being subject to a specific limitation period; however, Court of Cassation practice also contains views that this action should be filed within the general ten-year limitation period.

Practical Recommendations

Investigate the property transfers the deceased made during their lifetime and the actual circumstances of those transfers (whether payment was made, the relationship between the parties); planning the evidence-gathering process with a lawyer for transactions suspected of being a sham increases the likelihood of success in the action.

This article is for informational purposes only and does not constitute legal advice. Please contact our team regarding your specific situation.