TO THE ANTALYA CIVIL COURT OF FIRST INSTANCE
CASE NO.: … E.
DEFENDANT: ………. Inc.
ATTORNEYS: Attorney ……….
PLAINTIFF: ………
SUBJECT: Objection to the expert report dated December 5, 2021, and submission of our statements.
EXPLANATIONS:
Enforcement proceedings were initiated by the Antalya… Enforcement Directorate under Case No. ……. E. to collect the bank’s claim against the deceased ………. In this lawsuit for renunciation of inheritance filed on the grounds of insolvency regarding this debt, the report concerning the valuation of the real estate properties belonging to the deceased debtor ……….—located in …… Province, ………, ………. Neighborhood, …… Block, Lots No. … and …—was served to us on January 4, 2022.
We are submitting our statements and objections to the expert report within the prescribed timeframe.
In summary, the expert report states:
The northern facade of Parcel No. …… of the subject real estate faces …… Street, while the southern facade of Parcel No. ……… of the subject real estate faces ………… Street. The area is characterized by multi-story residential buildings. The property is located within walking distance of the city center of ………… District, in the marketplace. The area has full access to infrastructure services. The subject properties are located 100 meters as the crow flies from the ……… Municipal Building.
The value of the plot numbered ……….. as of the date of the lawsuit was 30,820.00 TL.
The value of the two-story wooden house, barn, and land as of the date of the lawsuit was 310,852.50 TL.
The total value as of the date of the lawsuit was 341,672.50 TL.
The real property subject to the appraisal mentioned above is located on a busy street in the central market area of the district. For this reason, it is believed that the property has a higher value than the appraised amount.
As can be understood from the expert report, the estate is not insolvent. The decedent’s estate contains assets. Therefore, this lawsuit must be dismissed in accordance with the relevant records.
Furthermore, heirs who have renounced the inheritance will be liable to the decedent’s creditors to the extent of the value of any movable property, real estate, or cash they received from the decedent within the five years prior to the decedent’s death and are obligated to return in the distribution of the estate; it is also necessary to investigate whether the plaintiffs received any transfers of real property, personal property, or cash from the estate within the five years prior to the decedent’s death, and whether the plaintiffs engaged in any conduct after the decedent’s death that would constitute acceptance of the estate.
Court of Cassation, 23rd Civil Chamber, May 29, 2019, Case No. 2018/1018, Decision No. 2436; “Pursuant to Article 610/2 of the Turkish Civil Code, an heir who, before the expiration of the period for renunciation, interferes in the administration of the estate, performs acts that do not constitute the ordinary administration of the estate and go beyond what is necessary for the conduct of the decedent’s affairs, or conceals or appropriates estate assets, cannot renounce the inheritance. As is evident from the text of the provision, the legislature has established that excessive involvement by an heir in estate affairs constitutes implied acceptance of the inheritance and, just as in the case of express acceptance, the right to renounce the inheritance ceases for that heir. For the reasons explained, an heir who has definitively claimed the inheritance and engaged in the aforementioned acts cannot subsequently file a petition for judicial renunciation.”
Furthermore, the law provides for a three-month statute of limitations for the renunciation of an inheritance. Accordingly, a request to renounce the inheritance must be filed within three months from the date of the decedent’s death or from the date the heir learns of their status as an heir. An inheritance not renounced within this period is deemed to have been accepted.
On the other hand, the client’s request that the bank be ordered to pay litigation costs and attorney’s fees is also contrary to law. This is because the issues of whether the estate is insolvent and/or whether the plaintiff can renounce the inheritance will be determined at the conclusion of the proceedings; regardless of the final decision, the client bank—which did not cause the lawsuit to be filed—should not be ordered to pay litigation costs and attorney’s fees. (14th Civil Chamber, June 19, 2018, Case No. 2016/9581, Decision No. 4658 – 14th Civil Chamber, June 5, 2018, Case No. 2017/6075, Decision No. 4450)
CONCLUSION AND REQUEST: For the reasons explained above and to be considered ex officio by the Honorable Court, we respectfully request that the unfounded lawsuit be DISMISSED and that the litigation costs and attorney’s fees be ordered to be borne by the plaintiff. January 17, 2022
…………. Inc. Counsel,