The heirs who have the right to an inheritance in such a way that the inheritor cannot intervene in any way and cannot save on it are called “heirs with a reserved share”. The heirs with reserved shares, which are considered limited in the Civil Code, are:
The descendants of the inheritor (their children, adopted children, grandchildren and their children),
The parents of the inheritor,
The wife of the inheritor.
The brothers of the one who left the inheritance, who were considered as the hidden share heir before, were excluded from being the hidden share heir with the amendment made. However, in the case of deaths that occurred before May 10, 2007, when this change was made, the brothers’ reserved share will also be taken into account in the tenkis lawsuit filed on a later date.A Tenkis lawsuit is a lawsuit filed to eliminate the infringement of the inheritance right of the heirs who have reserved shares by exceeding the freedom of saving of the inheritor and to withdraw the savings made by the inheritor within the legal limits.
A tenkis case is a case related to inheritance law and is a case that can be filed in the event of the death of the muris (the one who left the inheritance). It is not possible to open this case while Muris is alive.
In other words, if the performance debt arises from these transactions, the heirs of the reserved share get rid of this performance debt, or if it has been performed, the decision on their return at this rate is called a criticism (TMK art. 560).
A tenkis case is a case in which, as a rule, the heirs with reserved shares and, as an exception, the creditors of these heirs demand from the court that their earnings exceeding the savings rate of the inheritor be neutralized at this exceeding rate. A tenkis lawsuit can only be filed in the event of the death of the inheritor. Heirs with hidden shares, even if it is certain that the acquisition made while the inheritor is alive violates their hidden shares, and even if his death is expected to cause irreparable damages, they still cannot file a lawsuit for criticism. They cannot request an injunction for any reason. In short, the rights of heirs depend on the death of the inheritor.
According to the Civil Code, as a rule, only heirs with reserved shares can open a criticism case. As we mentioned above, the heirs with hidden shares are the lower lineage of the one who left the inheritance, his parents and his wife.
Since the right to file a claim for criticism is a right that exclusively protects each reserved heir, both the representative assigned to the inheritance company and the probate enforcement officer (probate enforcement officer) do not have the authority to file this case.
Each reserved share heir can open the case independently of the others. Here, although the amount of encroachment on the savings ratio is calculated taking into account all the reserved shares; it can be criticized only as much as the reserved share of the heir who filed the lawsuit, and not the entire amount that can be criticized to be found. In other words, the heirs with reserved shares who do not file a lawsuit cannot benefit from this criticism decision.
If the reserved share heir does not have a driver’s license, his legal representative will open the tenkis case on his behalf. If he neglects this, he becomes responsible within the scope of the provisions on the responsibility of the parent or guardian.
As we mentioned above, as a rule, only Heirs with a Reserved Share can file a criticism lawsuit. However, except for the heirs with reserved shares, their creditors have the right to file this lawsuit when the heirs with reserved shares do not file a criticism lawsuit. The aim here is to ensure that creditors can receive what they receive. However, they can only open this case if they have an incapacitated certificate about the hidden shared heir they are creditors of. The incapacitated passport must be on the date of opening of the inheritance. If the incapacity certificate was obtained after the inheritance was opened, they cannot file a criticism lawsuit against the debtor, even if the court decision or enforcement proceedings took place earlier.
If the debtor is bankrupt, in this case, he has the right to open a tenkis case to the bankruptcy desk. Creditors and the bankruptcy office may give the reserved share heir a period of time to file a criticism lawsuit and may file a criticism lawsuit if this does not yield results. The period here should be an appropriate period of time, or if it is absolutely certain that it will be pointless to give a deadline, the creditor or the bankruptcy desk can file a direct criticism lawsuit.
Creditors can only request a review as much as their own receivable amount in the review case they will open. Again, if the heir with a hidden share leaves the criticism lawsuit filed with the aim of harming his creditors and does not follow up, the creditors can file a criticism lawsuit themselves by proving this. In the same way, if the heir with the reserved share is excluded from the inheritance by the inheritor, the creditors may request the cancellation of the deduction for the portion of the reserved share equal to the amount of the receivable.
In the Tenkis case, the defendants are the persons who made gains by exceeding the savings rate of the inheritor by encroaching on the reserved shares and who are subject to criticism by law. These can be third parties or heirs.
If the person to whom the acquisition is made has died, his heirs will be the defendant. If the winnings are made to more than one and different people, more than one person will be the defendant. If the heir has the right to sue all of them, he is not obliged to do so. But he will have to suffer the consequences of this. Because the rules of order in tennis can have adverse consequences.
As a rule, a criticism lawsuit can be filed against people who have won. However, the Court of Cassation accepts that, as an exception, if the property subject to acquisition has been transferred to third parties, it can be filed against these persons. Here, after the transfer of savings made by the inheritor in order to eliminate the reserved share rules, if the beneficiary assigns real estate to third parties who know the situation in order to deprive the heirs of the reserved share of these rights, except for the information and instructions of the inheritor, a criticism lawsuit may be filed by these heirs of the reserved share against these malicious people.
The right to file a lawsuit for criticism is one year from the moment the heirs learn that their reserved shares have been violated. The lawsuits to be filed about wills shall be dropped by passing ten years from the date of the opening of the will and the opening of the inheritance about other savings (TMK m. 571). However, if the cancellation of one saving revives the other, the periods begin to operate only on the date when this cancellation decision is finalized. Here the one-year period does not run before the opening of the inheritance.
In the same way, in terms of wills, this period does not work before the will is opened. The beginning of the ten-year period, on the other hand, is the date on which the inheritance is opened for Decriminalization and inheritance agreements, and the date on which the will is opened for probate. The date of opening the will is the day on which the heirs known to the judge are summoned and opened in their presence following the deposit of the will in the Magistrate’s Court. As another special case, if a savings subject to criticism becomes valid with the cancellation of a savings, the periods begin to run from this moment.
These one- and ten-year periods, to which the criticism case is subject, are not statute of limitations, but periods of reduction of rights.
The courts in charge of the Tenkis case are the Civil Courts of First Instance.
By clicking here, you can access our other article examples and petition examples.