Action for Sham Transfer by the Decedent (Muris Muvazaası)

A sham transaction lawsuit by a decedent ("muris muvazaası") is an action for cancellation and re-registration of a land title. It is filed when a decedent, who actually intended to gift a property in order to keep it away from their heirs, transferred it at the land registry while disguising it as a sale or a lifetime care agreement. It is also commonly known as the "lawsuit for evading inheritance." The heir who files the lawsuit proves that the true nature of the transfer was a gift and that the apparent sale was merely a facade, and then requests cancellation of the title and registration in their name in proportion to their inheritance share.

Unlike a reduction lawsuit (tenkis), this action is not based on protecting the reserved share, but on establishing that the transaction was invalid from the outset. Its outcome is therefore different: if the sham is proven, the transaction is deemed entirely invalid in proportion to the heir's inheritance share.

Legal basis: the 1974 Unification of Case Law Decision

The main legal basis for a decedent's sham transaction is the Court of Cassation's Unification of Case Law Decision No. 1/2 dated 01.04.1974. According to this decision, where a decedent, in order to keep property away from their heirs, disguises a property they actually intended to gift as a sale at the land registry, the transaction is invalid:

• The apparent sales contract does not reflect the true intention of the parties, and is therefore a sham and invalid (Turkish Code of Obligations, Art. 19).
• The concealed gift contract is not valid either, because it was not made in the official form required by law for the gift of real estate.
• Heirs may rely on their inheritance rights to assert the invalidity of this transaction and request cancellation of the title and re-registration.

This decision has been applied consistently in practice for more than half a century. Statutory heirs may bring this lawsuit regardless of whether they hold a reserved share.

How is a sham transaction proven?

Proving the sham is the most critical stage of the case. Because heirs are regarded as third parties with respect to the decedent's transaction, they may prove the sham by any kind of evidence, including witness testimony. When determining the decedent's true purpose, courts evaluate the following criteria together:

• Price difference: Whether there is a clear disproportion between the sale price shown in the land registry and the actual value of the property,
• Need to sell: Whether the decedent had an economic need at that time that would have required selling the property,
• Buyer's ability to pay: Whether the person who took over the property had the income to pay the price and whether the money was actually paid,
• Family relations: Circumstances such as estrangement, resentment, or close affection between the decedent and the other heirs,
• Local customs and traditions: Practices such as a regional tendency to leave property to sons or to a particular heir,
• What happened to the sale price: Whether the money allegedly obtained from the sale left any trace in the decedent's assets.

In the Court of Cassation's case law, a sham is not accepted if the decedent's purpose was not to evade inheritance but, for example, to receive real consideration in exchange for care or to make a balanced distribution among the heirs. For this reason, the decedent's entire estate and the transfers made to the other heirs are examined together.

Transfers disguised as lifetime care agreements

The Court of Cassation's practice applies the principles of the unification of case law decision not only to sales but also to transfers that appear to be lifetime care agreements. Here, the court assesses whether the care obligation was genuinely undertaken, as well as the decedent's age, health condition, and need for care on the date of the agreement. A person who has no need for care and who supports themselves financially transferring their property in exchange for care can be considered a strong indicator of a sham. Proof that care was actually provided often relies on witness statements.

Lawsuit process, competent and authorized court

1. Preliminary research: Land registry records and transfer dates are examined, a certificate of inheritance is obtained, and preliminary information is gathered about the property's value on the date of transfer.
2. Petition: Cancellation of the title and registration in proportion to the inheritance share are requested; if the conditions are met, a reduction claim is added as an alternative.
3. Investigation: Witnesses are heard, the actual value on the date of transfer is determined through site inspection and expert examination, and bank records are obtained.
4. Decision and appeal: If the sham is proven, the court orders cancellation of the title and registration in proportion to the plaintiff's inheritance share.

The main documents to prepare for the lawsuit are: the certificate of inheritance, the property's title deed record and the sales deed record held at the land registry office, bank account activity of the decedent and the transferee for the period of the transfer, the decedent's health records if any, and records showing the decedent's other asset transfers. Choosing witnesses who have direct knowledge of the family relationships and the transfer process increases the strength of the evidence.

The case is heard in the civil court of first instance. Because it concerns a right in rem over real estate, the court at the location of the property has exclusive jurisdiction (Code of Civil Procedure, Art. 12). The lawsuit can only be filed after the decedent's death, because the capacity of heir and the related right of action arise upon death. In the Court of Cassation's practice, this lawsuit is not subject to a statute of limitations or a forfeiture period. Even so, as time passes, it becomes harder to reach witnesses and prove the circumstances at the time of transfer.

If the property has been transferred to a third party

If the person who acquired the property through the sham transaction later sells it to a good-faith third party, the acquisition of the good-faith third party who relied on the land registry is protected (Turkish Civil Code, Art. 1023). In this case, instead of cancellation of the title, a claim for compensation or damages in proportion to the inheritance share arises against the person who first acquired the property through the sham transaction. If the third party is proven to have acted in bad faith, the cancellation and registration claim may also be directed against them. Placing a precautionary injunction on the property when filing the lawsuit is important to prevent new transfers during the proceedings.

If the sham cannot be proven, or if the transaction is a genuine gift, the path of a reduction lawsuit (tenkis) should be considered in order to protect your reserved share. For the general framework on dividing an inheritance, you may also read our article on how an inheritance is divided. Every case is unique; factors such as the date of transfer, family relationships, and price difference directly affect the outcome. The specific circumstances must be assessed separately.

Our firm's support

In decedent sham transaction cases, we conduct a preliminary review based on land registry and bank records, plan the witness and valuation evidence, submit the request for a precautionary injunction together with the lawsuit, and add the reduction claim as an alternative, so that the case is handled comprehensively in a single proceeding.