Conditions and Modal Burdens in Wills: Validity, Performance and Litigation Routes

A person may wish to leave property after death only if a specific event occurs, or may want the person who receives the property to carry out a specific task. Requiring income to be set aside for a relative who is continuing their education, using a property as a library, or taking on the upkeep of a grave are different examples of this need. However, not every request written in a will produces the same legal result. Conditions, modal burdens (yükleme), specific bequests of property and non-binding wishes must be kept apart. 1

Short answer: A condition ties the coming into effect or the continuation of a gift to an uncertain event; a modal burden requires that a specific conduct be carried out. Breach of a modal burden does not, on its own and in every case, lead to the return of the property left. Provisions that are unlawful or immoral, and provisions that are meaningless or merely annoying, are also subject to different consequences. First the true meaning of the will must be determined; then the correct claim and time limit can be chosen. 1 3 4

How are conditions, modal burdens and legacy claims (vasiyet alacağı) distinguished?

A condition ties the effect of a gift to an event

In a suspensive condition, the relevant effect of the gift does not arise until the envisaged event occurs. In a resolutory condition, the effect of the gift begins and the question is whether it will end when the agreed event occurs. For example, an expression connected with education or with a particular manner of use may point to either of these two possibilities, depending on the text as a whole. The use of the word “şartıyla” (“on condition that”) at the beginning of a phrase is not enough on its own. 1 5

An event that is certain to occur in the future is not the same as an event whose occurrence is uncertain. Fixing a payment date does not always amount to a condition. When a gift can be claimed and whether it will ultimately be acquired are separate questions. When a will is drafted, these two elements should be stated clearly in separate sentences.

A modal burden requires the performance of a specific conduct

A modal burden may impose on the person benefiting from the gift a duty to do something, to give something or to refrain from doing something. Its purpose may be to secure the benefit of a specific person, a social benefit, or a legally protectable wish of the testator. TMK Article 515 allows every interested person to demand performance once the disposition has taken effect. The interest in question requires a connection with the specific burden; it does not mean that anyone has an unlimited right to sue. 1

The position of the beneficiary (lehtar) of a burden differs from that of a claimant to a specific legacy. A burden does not, merely because of that status, confer an ordinary personal claim that the beneficiary may freely assign; nevertheless, a demand for performance can be legally asserted. For that reason, the statement “there is no claim right” cannot be turned into “one cannot apply to a court”. 3

A specific bequest and a moral wish are different

Where money, goods or income is left to a person, depending on the content of the text it may constitute a legacy claim under TMK Articles 517 and 600. The fact that it is drafted as a payment to be made by someone else does not necessarily make it a burden. Whether the text intends to give the beneficiary a direct right to claim is what matters. By contrast, a wish that carries no intention to bind may not create a duty that can be enforced by law. 1

The distinctions in the table are not abstract classifications. They change the claimant's status, the defendant, the relief sought, the time limit and the way the decision will be enforced. Ambiguous wording should be interpreted together with the whole will and with lawful external evidence. 1 2

Which conditions and burdens may be valid?

TMK Article 515 gives the testator a broad field of regulation, but this field is not unlimited. The purpose must be legally protectable, the conduct must be sufficiently determinable and performance must be possible. In arrangements such as a building being used for an educational purpose for a fixed period, if the scope of use, the expenses, supervision and the duration are not clarified, the application may give rise to a dispute as much as the gift itself. 1

Hypothetical example: The testator leaves a building to an organisation and requires that it be made available to students as a free workspace for ten years. Once the text clearly identifies to whom the building is given, and then explains the hours of use, the source of funding for mandatory maintenance costs and to whom the accounts are to be rendered, the risk of dispute decreases. These are not standard clauses that the law requires for every will; they are preparatory elements that clarify how the provision is to be applied.

That a conduct is expensive or burdensome does not mean that it is invalid in itself. Nevertheless, the value of the gift, the reserved portions (saklı paylar), the economic freedom of the person and the duration of the obligation must be examined together. A later increase in the burden does not amount to a general power allowing a court to rewrite the will freely. The institution that applies depends on the concrete case and the nature of the disposition. 1 3

Reserved portions and the economic limit of a gift

The fact that a condition or burden may be imposed does not give authority to nullify the statutory system of reserved portions. The economic effect of the gifts and of the burdens undertaken must be assessed together with the estate accounts. For a person whose reserved portion has been infringed, an action for abatement (tenkis davası) may arise; this route differs from an action for annulment on the ground of an unlawful condition. First the right that has been violated should be identified, then the legal protection sought. 1 Gifts that exceed the reserved portion are discussed in the article action for abatement and reserved portion.

Under TMK Article 519, in the case of a specific bequest, legacies are deducted with regard to the estate, the gift to the burdened party or the limits of reserved portions. However, without separating a modal burden from a legacy claim, the consequence of this provision should not be applied identically to all duties. The petition should specify the financial value of the burden, the value of the gift and any shortfall in the reserved portion. A mere statement that “the cost is very high” does not explain which legal limit has been exceeded. 1

What are the consequences of provisions contrary to law or morals?

TMK Article 515/2 provides that a condition or burden contrary to law or morals invalidates the relevant disposition. TMK Article 557/3 treats as a ground for annulment the fact that the content of a disposition, or the condition or burden to which it is attached, is contrary to law or morals. For this reason, it is not correct in every case simply to delete the problematic sentence and continue to apply the gift unchanged. The scope of the relevant gift and its relationship with other independent provisions must be examined. 1

Provisions that exert heavy pressure on a person's choice of marriage, divorce, belief or profession receive particularly careful scrutiny. However, the presence of a particular word does not produce an automatic result. The intensity of the interference, its effect on the person's freedom and the concrete context are what matter. A condition that requires the commission of an unlawful act cannot be applied merely because it reflects the testator's wish. 1 5

In an action for annulment, the status of an heir or legacy claimant with an interest in annulling the disposition, under TMK Article 558, is assessed separately. The fact that every interested person may demand performance under TMK Article 515 does not mean that the same persons may automatically bring an annulment action. It must be clearly stated whether the action is directed at the whole disposition or at a specific part of it. 1 The conditions of an annulment action are explained in the article annulment of a will.

Meaningless, merely annoying or impossible provisions

Meaningless and merely annoying provisions

TMK Article 515/3 provides a separate consequence for these provisions: they are disregarded (yok sayılma). This consequence is not the same as the invalidity of the relevant disposition on grounds of unlawfulness or immorality. The fact that a duty is disliked by the heir, considered burdensome or unusual does not place it in this category by itself. What is examined is whether the provision has a legally meaningful purpose and whether it has only an annoying character. 1

This distinction is particularly important for a party who wishes to preserve the gift. A claimant who says “the burden is too heavy” may in fact be asserting meaninglessness, a violation of personality rights or impossibility of performance. Since each of these has a different factual basis and consequence, the petition should state which situation is alleged.

Impossibility from the outset and subsequent impossibility

A debate on impossibility may arise where an institution that never existed is meant to continue a particular activity, or where a conduct can no longer physically be performed. However, whether the event is a condition or a burden, when the impossibility arose, whether it is temporary, and whether the testator would have wanted the gift without this purpose all affect the outcome. A single formula for impossibility cannot be applied to all wills. 3 5

For example, if a building left for an educational purpose is later seriously damaged, has the activity merely been halted temporarily or has it become permanently impossible? Can repairs be made? Does the will provide for an alternative location or an alternative use of the income? These questions must be answered through engineering, financial records and the wording of the disposition. Deliberate neglect by the burdened party should not be treated in the same way as impossibility caused by external reasons.

If a burden is not performed, is the property taken back?

A breach of a burden does not in itself create a resolutory condition. If the will clearly and validly provides that the property passes to another person when the specific conduct does not occur, such a provision may exist. Without such a provision, it cannot be assumed that the gift ceases automatically merely because performance has not taken place. Here the claim for performance, any effect of a condition, and whether a separate ground of invalidity exists should be distinguished. 1 3

At this point the focus of proof shifts. One party may maintain that the work was not done, while the other may argue that the task was completed, that the period had not begun, that the expenses were not paid, or that the required conduct does not appear in the text. Photographs, business records, student lists, payment receipts, maintenance invoices and official permits should be presented in connection with the claim. A few photographs do not always show that an obligation spanning an entire period has been performed. 2

If the breach has caused loss, the petition should explain the legal relationship and the requirements on which the claim for damages rests. The beneficiary of a burden cannot be equated with an ordinary contractual creditor so as to produce an automatic damages calculation. Likewise, the transfer of the gifted property to a third party is not, by itself, sufficient ground for an action to cancel the title.

Who may demand performance, and against whom is the action brought?

TMK Article 515 concerns persons who are interested: those with a connection to the purpose of the burden and to its performance. An heir, the executor of the will (vasiyeti yerine getirme görevlisi), or the person or institution that benefits from the burden may be considered within this scope, depending on the concrete connection. Interest is not limited to financial claims; moral interest may also matter in the particular case. Nevertheless, general curiosity should not be regarded as sufficient; the applicant must explain its connection with the burden. 1 3

In determining the defendant, look at the person on whom the burden is imposed in the will. The appointed heir, the statutory heir and the person receiving a specific legacy may occupy different positions. It matters whether the duty is imposed on the named person personally or on the basis of benefiting from a specific gift. Where there is an executor of the will, that person's authority and duties are examined as well. 1

It cannot be said that all burdens automatically pass to heirs when the burdened person dies, when the gift is refused, or when the beneficiary institution ceases to exist. The personal nature of the burden, the question of to whom the gift passes, and the arrangement of the disposition as a whole are assessed. On independent burdens, their obligor and the succession of successors to the obligation, scholarship takes different approaches. 3 4

In files that require not only court proceedings but also regular administration, the executor of the will (vasiyeti yerine getirme görevlisi) becomes important. Appointing an executor does not remove every dispute, but it can be useful for keeping records, monitoring payments and coordinating the implementation of the disposition.

What is the time limit for demanding performance of a burden?

TMK Article 515 does not set out an express general limitation period for demanding performance of a burden. How this gap should be assessed is disputed in scholarship. Some approaches argue for the analogous application of the ten-year period applicable to legacy claims; another approach takes the specific nature of the burden as its starting point. Therefore, it cannot be said that there is an undisputed ten-year period for all burdens. 1 3 4

Tuhan Boz argues that there is no statutory time limit for a claim to perform a burden, and links the question of time and continuity to the nature of the obligation. Zengin Özküçükparlak, however, defends the approach of a ten-year outer limit unless a longer outer limit is expressly provided. These are different scholarly views; the view of one author should not be presented as if it were a rule of law. 3 4

In practice, safe preparation involves determining whether the claim is for a burden or for a legacy claim, fixing the time of performance, separating one-off performances from recurring ones, and taking into account the possibility of an objection based on the shortest time limit. Waiting for years on the premise that “a burden has no time limit” may lead to loss of evidence and to a limitation defence. The existence of a debate on time limits does not mean that any delay is harmless in every case.

The rules on raising annulment and abatement as a defence (def'i or defence) should not be confused with the time limits for bringing an action. A right of defence does not mean that an independent action for restitution or registration may be brought at any time. 1 For the opening and enforcement of a will, see the article opening and enforcement of a will.

How are the type of action, the court and mediation determined?

Where performance of a specific conduct is sought, an action for performance is relevant; where the validity of the will is disputed, an annulment action; where reserved portions are to be protected, an action for abatement. Where the scope of the gift is uncertain, interpretation may form part of the resolution of these claims. If an independent declaratory action is to be brought solely in order to clarify a provision, the present legal interest under HMK Article 106 must be shown. 1 2 For the interpretation of unclear provisions, see the article interpretation of a will.

For contested property disputes, the civil court of first instance (asliye hukuk mahkemesi) is generally the one to consider. Opening a will before a civil court of peace (sulh hukuk mahkemesi), enforcing a burden and annulling a disposition do not fall under the same subject-matter jurisdiction. On venue, HMK Article 11, which concerns annulment and abatement, and HMK Article 12, where an in rem claim exists, are considered together with the other relevant rules. A single venue rule should not be applied to every will dispute. 2

Not every action concerning a burden is automatically subject to compulsory mediation. It is checked whether the claim falls within rent, dissolution of co-ownership (partition) or another procedural condition regulated by law. That a claim relates to immovable property does not by itself place all claims under the same mediation regime. In voluntary resolution, the limits of rights that may be freely disposed of must be respected. 6

Court fees and expenses are determined not only by the existence of a will but by the nature and value of the claim and the examination it requires. Expert appraisal (bilirkişi), on-site inspection (keşif), service and enforcement costs may arise separately. No fixed cost of litigation and no definite timeline for the outcome can be given. For appeals, the general two-week periods in HMK Articles 345 and 361 must be checked, together with the type of decision and the rules on monetary finality. The period is calculated from the date of proper service; it should not be assumed that every decision is open to appeal on points of law. 2

How should an evidence file and an implementation plan be set up?

At the first stage, collect a complete and legible copy of the will, the opening file, the service records and any other wills. Then determine whether the burdened person has benefited from the gift and when the burden began. The claim must not remain at the level of “let the will be carried out”; the conduct sought, the period and the scope should be shown clearly. 1 2

At the second stage, examine the period of breach and the opposing party's explanation. For example, in a maintenance burden, distinguish whether maintenance was never provided, was provided incompletely, or whether its reasonable form is in dispute. If preservation of evidence (delil tespiti) or an interim injunction is being considered, specify the risk of loss, the urgency and the proportionality of the request. An interim injunction is not an unlimited tool that would decide the final action in advance. 2

At the third stage, consider whether the decision can be enforced. If an institution is to carry on a specific activity for ten years, the decision must state clearly which conduct it orders. An abstract demand that is not supported by supervision, reporting and expense records may give rise to a new dispute at the enforcement stage. A record system set up at the start of the file helps to show both performance and breach.

What does the decision on the education condition show?

The decision of the 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi) dated October 12, 2023, E. 2022/2659, K. 2023/4689, concerns the scope of a provision allowing the beneficiary to benefit from the income of a property for as long as education continues. The first-instance judgment, which assessed the high school, bachelor's, master's and doctoral stages within certain limits, was upheld by the Court of Cassation after appellate review. 7

This decision does not mean that the word “education” in every will automatically extends to doctoral study. The result was reached with respect to the text of that disposition and the dispute in which it arose. Clarifying at the drafting stage which programmes, what maximum period, and whether an interruption or a change of programme falls within the scope reduces later disputes over interpretation. It should also not be stated that such income arrangements are necessarily burdens; the distinction between a legacy claim and a condition must be made according to the text.

Which points should be stated clearly when a will is prepared?

First, the property or share being given and the person who will benefit must be clearly identified. Then the conduct required, the start and end times, the source of funding, the criterion for performance and, if any, the method of supervision should be specified. Lawful alternatives should be considered for possibilities such as the death of the burdened person, the closure of an institution, or the activity becoming impossible to carry out. 1

If a breach occurs, state clearly what is being requested: only performance, a provision that ends the effect of the gift, or a disposition directed at another person? When these options are compressed into a single sentence, uncertainty increases. If substitute heirs (yedek) and accruing heirs (artmirasçı) are being considered, their own limits must be examined separately. 1 For successive gifts, see the article appointment of substitute and accruing heirs.

Even where the drafting is legally appropriate, the formal requirements of the chosen type of will must be observed. It cannot be assumed that details later given by email automatically constitute a valid amendment to the will. For the distinctions between official, handwritten and oral wills, the article What Is a Will and How Is It Prepared? is a useful complement.

Conclusion

In disputes over conditions and burdens, what is decisive is the legal order established by the testator, rather than the heading used. Making a gift dependent on a condition, imposing a duty of conduct and granting a claim to a person must be assessed separately. Validity, the right to claim, time limits and the consequences of breach are determined after this distinction is made. A clear text and regular records of performance make it easier both to implement the final wishes and to protect rights. This article is general information; each disposition must be examined in light of its own text and the facts of the file.

Frequently Asked Questions

Can a condition be attached to a will?

Yes. TMK Article 515 permits conditions and burdens. However, conformity with law, morality, personality rights and the other validity requirements of the disposition is assessed separately. 1 Detail: Which conditions and burdens may be valid?

Are a condition and a burden the same thing?

No. A condition ties the effect of a gift to an event; a burden requires a specific conduct. This distinction is especially important where a breach ends the gift. 1 5 Detail: How are conditions, modal burdens and legacy claims distinguished?

If a burden is not performed, is the inheritance automatically taken back?

Not in every case. A breach of a burden does not automatically create a resolutory condition that is absent from the text. Performance, invalidity and the termination of the gift are considered separately. 1 3 Detail: If a burden is not performed, is the property taken back?

If an unlawful condition is deleted, is the will applied as it stands?

This is not a general rule. TMK Article 515/2 provides for the invalidity of the relevant disposition. Which gift is affected, the grounds for an annulment action and other independent provisions must be assessed separately. 1 Detail: What are the consequences of provisions contrary to law or morals?

Do merely annoying burdens produce the same result?

No. TMK Article 515/3 regulates the disregarding of meaningless or merely annoying conditions and burdens. This category is distinct from unlawfulness or immorality. 1 Detail: Meaningless, merely annoying or impossible provisions.

Can anyone demand the performance of a burden?

The law refers to interested persons. The applicant must show a concrete legal connection with the purpose and the performance of the burden; general curiosity is not enough. 1 Detail: Who may demand performance, and against whom is the action brought?

Is there definitely a ten-year period for performing a burden?

TMK Article 515 contains no express general limitation period. Scholarly views on the time limit differ. It must be determined whether the claim is for a burden or a legacy claim, and what the nature of the performance is. 1 3 4 Detail: What is the time limit for demanding performance of a burden?

If the burdened person dies, does the duty necessarily pass to their children?

No automatic result should be assumed. The personal nature of the burden, the fate of the gift and the arrangement of the will are important. Different approaches to the passing of the obligation to successors are also considered. 3 4 Detail: Who may demand performance, and against whom is the action brought?

Does an education condition also cover master's and doctoral study?

It depends on the text. In the 2023 decision these stages were assessed within certain limits; the decision does not require the same scope for all education conditions. 7 Detail: What does the decision on the education condition show?

Does opening a will mean that the burden has been performed?

No. Opening the will and notifying interested persons is different from carrying out the disposition. The steps necessary for performance, contentious litigation where needed, and enforcement of the decision are handled separately. 1 2 Detail: How are the type of action, the court and mediation determined?

Sources and legal bases

1. Law No. 4721, Turkish Civil Code; in particular Articles 504, 514–525, 531 et seq., 550 et seq., 557–559, 571, 595–602. Current official text.
2. Law No. 6100 on Civil Procedure; Articles 2, 4, 11–12, 105–106, 119, 190, 345, 361–362, 389 et seq., 400 et seq. Current official text.
3. Burcu Zengin Özküçükparlak, “Ölüme Bağlı Tasarruflarda Yükleme ve Yüklemenin Tenfizine İlişkin Sorunlar”, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, 26(1), 2024, pp. 513–556. DOI: 10.33717/deuhfd.1391971. Article and full-text access.
4. Reyhan Tuhan Boz, “Ölüme Bağlı Tasarruflarda Yüklemenin Yerine Getirilmesi Talebinin İleri Sürülebileceği Süre”, ASBÜ Hukuk Fakültesi Dergisi, 4(2), 2022, pp. 798–822. DOI: 10.47136/asbuhfd.1190095. Article and full-text access.
5. Müjgan Gömeç, “Ölüme Bağlı Tasarruflarda Koşul ve Yüklemeler”, Kırıkkale Hukuk Mecmuası, 1(1), 2021, pp. 31–53. Full text.
6. Law No. 6325 on Mediation in Civil Disputes; Articles 1, 17/B, 18/A–18/B. Current official text.
7. 7th Civil Chamber of the Court of Cassation (Yargıtay 7. Hukuk Dairesi), October 12, 2023, E. 2022/2659, K. 2023/4689. Concrete scope of an education-linked income arrangement. Official text of the decision.