Simulated transfer by the deceased is where the deceased, in order to keep property from the heirs, presents a transfer of immovable property as a sale in appearance while in reality making a gift. There are two transactions: the apparent sale (which the parties did not really intend) and the concealed gift (invalid because the formal requirements at the land registry were not observed). The result is that the transfer is treated as void and the property returns to the estate.
Who can bring the claim? #
All heirs can bring the claim, whether or not they have a reserved share. That is the most important difference from an action to reduce dispositions: in the latter only an heir whose reserved share has been infringed can sue, whereas in simulation every heir can be a claimant and the claim is not limited to the reserved share.
There is no limitation period #
Because a simulated transaction is void from the outset, neither a limitation period nor a preclusive period runs in a claim for cancellation of the land registry entry and for registration based on simulated transfer by the deceased. The claim can be brought even if the transfer was made twenty years earlier. In an action to reduce dispositions, by contrast, the one-year and ten-year periods apply.
What does the court look at? #
The criteria assessed in the practice of the Court of Cassation are these:
- The gap between the prices: whether the sale price in the land register is far below the real market value at the date of transfer.
- The transferee’s ability to pay: did the transferee have the financial means to pay the price at that date? Bank records, proof of income and social security records are examined.
- The deceased’s need to sell: did the deceased have a need that made selling the property necessary? A sale made while there was money in the bank raises suspicion.
- Relations within the family: the closeness and the tensions between the deceased and the heirs.
- Local and social practice: the customs of transfer in the area.
- Use after the transfer: that the deceased went on living in the property or collecting its rent is a strong indication.
What evidence should be gathered? #
The complete transfer file from the land registry (the deed table, the declarations), the market value of the property at the date of transfer, the transferee’s bank account movements, the deceased’s bank records, witness statements and any correspondence. In these files witness evidence is decisive not on its own but when weighed together with the other evidence.
Simulation or reduction of dispositions? #
| Criterion | Simulated transfer | Reduction of dispositions |
|---|---|---|
| Nature of the transaction | A sale in appearance, a gift in reality | A genuine gift |
| Claimant | All heirs | Heirs with a reserved share |
| Time limit | None | 1 year / 10 years |
| Result | The transfer is wholly void | Recovery up to the reserved share |
In practice these two claims are raised together in the alternative: first cancellation of the entry for simulation and, if that is not accepted, reduction of dispositions. This method prevents the loss of rights should the legal characterisation be assessed differently.
An important limit #
Not every transfer made by the deceased in their lifetime is a simulation. A sale for which the price was genuinely paid is valid, however little the heirs may like it. Likewise, in transfers made under a contract of maintenance until death, an allegation of simulation succeeds only if it is proved that the duty of care was never performed at all.
The claim step by step #
- Certificate of inheritance: obtained from a notary or from the civil court of peace. To bring the claim, status as an heir must be documented.
- Land registry search: all of the deceased’s transfers of immovable property in recent years are obtained from the land registry. The deed table, the price and the parties’ declarations are examined.
- Interim injunction: to guard against the risk that the transferee sells the property to a third party, an injunction note on the land register is sought when the claim is brought. If this step is skipped, the property may have passed to a third party acting in good faith even if the claim succeeds.
- The claim: brought in the civil court of first instance for the place where the property is situated, seeking cancellation of the entry and registration. The claim is framed in the alternative: simulation first and, failing that, reduction.
- Examination: bank and social security records are obtained, witnesses are heard, and an expert examination is carried out on the value of the property at the date of transfer.
- Judgment and registration: if the claim succeeds, the land registry entry is cancelled and the property is registered in the names of the heirs in proportion to their shares.
What if it has been sold to a third party? #
If the person who acquired the property through the simulated transaction has sold it to a third party acting in good faith, a claim to cancel the entry will as a rule fail. Article 1023 of the Turkish Civil Code protects a third party in good faith who acquires rights in reliance on the land register.
In that case the heirs’ claim converts into compensation: damages can be sought from the person who benefited from the simulated transfer, up to the value of the property. But if it is proved that the buyer acted in bad faith (knew of the simulation or was in a position to know), cancellation of the entry remains possible.
That is why the most critical step in the claim is placing an interim injunction note on the land register when the claim is brought. In transfers made after the note, a third party cannot claim good faith.
Bank accounts and other assets #
Simulated transfer by the deceased is in practice mostly argued over immovable property; but large bank transfers made shortly before the death, the conversion of an account into a joint account, or changes of beneficiary can also be taken into account. For transactions of that kind, account movements are obtained from the banks.
For benefits other than immovable property, the institutions of reduction of dispositions and equalisation usually come into play instead of simulation. Determining which legal route is appropriate depends on the documentary structure of the file; you can see the general framework with the roadmap tool and look at our inheritance law page for the details.
After division: ending the co-ownership #
When the claim for cancellation and registration succeeds, the property is registered in the heirs’ names as co-owners. If the heirs cannot agree on how to use it, a claim for ending the co-ownership then comes into play.
To see what your share is, you can use our inheritance share calculator. Mediation before proceedings is compulsory for ending co-ownership too.
Related routes #
Simulated transfer by the deceased is only one of the grounds for claims to correct the land register. For other grounds such as lack of capacity, abuse of a power of attorney and fiduciary transactions, see our guide to claims for cancellation of the land registry entry and registration. If the estate is insolvent and you do not wish to take it on, the route is different; for that, look at our guide to renouncing an inheritance.
What to expect on time and cost #
Claims of simulated transfer by the deceased attract a proportional fee based on the value of the property, and the advance fee is paid when the claim is brought. Where there is more than one property, the fee is calculated on the total value; for that reason, in some files a claim is first brought for the property where the evidence is strongest and the others are left for later.
These claims call for patience in terms of time: the land registry and bank records must be obtained, an on-site inspection and expert examination are needed to establish the market value at the date of transfer, witnesses must be heard and, often, the deceased’s medical records examined. In Istanbul these files usually take two to four years. Since legal costs will be awarded to the other side if the claim fails, a realistic assessment of the evidence is important before starting.
Three things to establish before bringing the claim #
- Obtaining the land registry records retrospectively: the date of the transfer, its price and to whom it was made; and whether there were other transfers in the same period.
- Whether the price was genuinely paid: bank records and transfer statements. That no price was paid at all is the strongest indication of simulation.
- The deceased’s position at the date of transfer: was there a need that made a sale necessary; is any increase visible in their assets after the sale?
A significant proportion of claims brought without establishing these three things are dismissed for want of proof, even where the allegation is true.
