How to Prepare a Will? Formal Requirements and Validity Criteria

A will is a testamentary disposition involving a unilateral declaration of intent, through which a person determines how their assets will be distributed and to whom, after their death. Wills prepared under the Turkish Civil Code (TCC) are subject to specific formal requirements, and to be legally valid, they must comply with the criteria stipulated by law. In this article, we examine in detail how a will is prepared, its formal requirements, and the legal criteria for its validity.

What Is the Legal Nature of a Will?

A will is a unilateral legal transaction that takes effect after the death of the person who made it. Unlike bilateral legal actions such as renunciation of inheritance, inheritance agreements, or property division, a will becomes valid solely based on the declaration of the testator. However, for a will to be legally valid, it must comply with both the formal and substantive requirements set out in the law.

Types of Wills and Their Formal Requirements

According to the Turkish Civil Code, a will can be made in three forms:

1. Official Will

An official will is prepared before a notary public, a magistrate, or another authorized official. Two witnesses must also be present.

Requirements:

• The testator declares their intent to the official.
• The official writes down this declaration.
• The will is read aloud to the testator or read by them, then signed.
• Witnesses confirm that the testator is competent and acting voluntarily.
• Both the witnesses and the official sign the document.

This form is considered the most secure and reliable in terms of legal validity.

2. Holographic (Handwritten) Will

A holographic will must be written entirely by the testator by hand and signed.

Requirements:

• The entire text must be in the testator’s handwriting (typed or written by others is invalid).
• It must be dated with the day, month, and year.
• It must be signed by the testator.

This type of will is harder to prove and more susceptible to being lost or tampered with.

3. Oral Will

An oral will is an exceptional form, used only in extraordinary circumstances (e.g., war, immediate danger of death, or inability to access official channels).

Requirements:

• The testator declares their final wishes orally to two witnesses.
• The witnesses immediately write down the statement, sign it, and submit it to the relevant authority.
• The oral will must be formally validated as soon as possible.
• If the extraordinary situation ends and the testator survives, the oral will becomes invalid.

Validity Criteria for Wills

For a will to be legally valid under Turkish law, the following conditions must be met:

1. Legal Capacity

• The right to make a will belongs to individuals who are at least 15 years old and have the power of discernment (TCC Art. 502).
• Wills made by persons who are mentally ill, intoxicated, or under the influence of substances impairing judgment are invalid.

2. Compliance with Formal Requirements

• The formal rules outlined above must be strictly followed based on the type of will.
• In handwritten wills, especially, the absence of a date or signature renders the will invalid.

3. Legality of Content

• The will must not include provisions that violate public order, morality, or legal restrictions.
• If there are compulsory heirs, any dispositions infringing upon their reserved shares may be challenged and reduced through a court case.

Annulment and Invalidity of a Will

A will may be annulled in the following cases:

• Missing formal elements (e.g., no date or signature),
• Lack of legal capacity (e.g., no power of discernment at the time),
• Fraud, coercion, duress, or deception,
• Provisions contrary to public order or morality.

Interested parties may file a lawsuit in court to annul the will.

Conclusion: What to Consider When Drafting a Will

A will plays a crucial role in preventing disputes over estate distribution after death. Individuals who wish to draft a clear, lawful, and valid will are advised to seek legal counsel. For those with substantial assets, the official will is generally the most reliable method.

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