If the person transferring a property lacked capacity of discernment on the date of the transaction, the invalidity of that transaction and the correction of the land registry may come into question. What is decisive here is not age, the name of an illness or a guardianship order issued later. Whether the person could grasp the meaning and consequences of the disputed transaction and act accordingly is assessed as of the date the transaction was made. [1]
For example, a dementia diagnosis made years later does not show that every earlier sale is automatically void. Conversely, the fact that the transaction was carried out at the land registry, or that a short medical assessment was obtained on the same day, does not remove all medical evidence from debate. In these cases, the legal assessment and the retrospective medical review must be placed on the same timeline.
When is cancellation of title for lack of capacity requested?
Capacity of discernment is assessed according to the nature of the transaction
Article 13 of the Turkish Civil Code (TMK) provides that a person who is not deprived of reasonable conduct by reason of minority, mental illness, mental weakness, intoxication or similar causes has capacity of discernment. Article 15 TMK provides that, except for the exceptions set out in law, the acts of a person lacking capacity of discernment produce no legal consequences. [1]
Whether a person who can meet their daily needs understood the consequences of gratuitously transferring a very valuable property can be separately disputed. Conversely, a person with a physical disability or one who needs help from others may be able to understand a legal transaction they make. Physical dependence and the mental ability to assess a transaction are not the same thing.
The examination should not be limited to the question "was the person ill?". The type, onset and course of the illness, the effect of the medications used, cognitive findings and the complexity of the transaction are considered together. The report must explain why a given medical diagnosis bears on the outcome of the title cancellation.
A guardianship order and lack of capacity of discernment are not the same
A guardianship order (vesayet) creates a legal status for the protection of the person. However, the reason for the restriction and its date matter. A restriction decision issued later does not by itself prove that the person lacked capacity of discernment on the earlier sale date. Likewise, the fact that no guardianship order had yet been issued does not mean that the person was necessarily capable at the time of the transaction.
Transactions by persons who had capacity of discernment but are minors or under restriction are examined separately under the rules on legal representation and consent. A transaction carried out without any capacity of discernment should not be reduced to the same legal ground as a transaction lacking the required representative's consent or court permission. The petition must state clearly which capacity problem is being raised. [1]
Are the dates of sale, gift, power of attorney and mortgage investigated separately?
Yes. Where several transactions concern the same property, each transaction is assessed on its own date. If the owner first granted a mortgage, later gave a power of attorney and then a sale was made, a single general medical assessment may not be sufficient for all of these transactions. The situation on the date the power of attorney was given is also important for the arising of the power to represent.
In particular with progressive illnesses, the existence of capacity on an earlier date does not show that it existed on a later date. In situations such as temporary loss of consciousness, there may be differences between periods. The medical assessment requested must address separately every date and every type of transaction mentioned in the petition.
The distinction between mortgage and later transfer in the 2026 decision
In the decision of the 1st Civil Chamber of the Court of Cassation (Yargıtay 1. Hukuk Dairesi) dated March 9, 2026, E.2025/871, K.2026/1851, separate capacity assessments were made for the earlier mortgage and for the later power of attorney and title transfer. For the later transactions, the outcome of cancelling the title for lack of capacity was upheld; for the earlier mortgage, the outcome rejecting the claim was upheld. [3]
This example shows that accepting the cancellation of a title does not automatically erase every right over the property. A separate claim, the correct holder of the right and evidence on the transaction date are also needed for a mortgage. Which encumbrance is to be removed, and on what legal ground, should be explained together with the registration request.
Which evidence determines the health condition on the transaction date?
Preparing a date-focused file of health records
Hospital admissions, outpatient examinations, neurology and psychiatry records, cognitive tests, prescriptions, information on medication use and home-care documents may be researched. The important point is to show, as far as possible, the condition before the transaction, on the day of the transaction and shortly afterwards. Older records are not entirely worthless, but the scientific basis for any inference about the past must be shown.
The institution where the records are held, their approximate dates and the reason they are requested should be stated. A vague request for "all hospital records to be produced" is less effective than a concrete list of institutions and periods. Where no archive record is found, that result should also be reflected in the file.
| Evidence group | What it clarifies | What it does not show on its own |
|---|---|---|
| Health record close to the transaction | Clinical findings for that period | That the legal transaction is necessarily invalid |
| Diagnosis made later | Data on the course of the illness | Lack of capacity in all earlier transactions |
| Guardianship file | Reason for the restriction, report and date | That the same condition existed on every earlier day |
| Witness statement | Behaviour, communication and daily observations | The whole of a specialist medical assessment |
| Land registry and notarial documents | Type of transaction, date and persons involved | The final resolution of the disputed capacity issue |
Which events should be put to witnesses?
Instead of general impressions such as "she was very old", "she was forgetful" or "in our view she was healthy", concrete observations are sought. Did the person recognise close relatives? Had they expressed an intention to sell the property before the transaction? Could they discuss the price and the result of the sale? On what date did the witness personally see these events?
A witness's account does not replace a doctor's report; however, it can provide important data for the medical review. The witness's relationship with the parties, their opportunity to observe the events and the consistency of their account with the documents are assessed. Information based on hearsay must be kept separate from direct observation.
Procedure for access to health data
Health records are special categories of personal data. Investigating a legal claim does not require these records to be disclosed publicly. Rather than accessing someone else's account without permission or distributing records to unrelated persons, the necessary documents should be obtained with proper representation authority or through the court. Only information connected with the dispute should be included in the petition, and personal information should not be disclosed in publications outside the file.
How is a forensic medicine report evaluated?
The court resorts to an expert examination for matters requiring special and technical knowledge. In a capacity claim, all relevant medical documents and witness statements are submitted for expert assessment. What the report relies on, whether it directly addresses the disputed date and how it reaches its conclusion are important. Legal classification and the power to decide rest with the court. [2]
Conflicting reports must be resolved
Where one report finds capacity and another finds none, it is not enough to choose only the report that suits the desired outcome. It must be determined whether the conflict concerns the same date and the same documents. By completing missing documents, an explanation or a new assessment should be obtained from the competent expert board. Under Article 281 of the Law No. 6100 on Civil Procedure (HMK), objections to a report are, as a rule, to be made specific within two weeks of notification. [2]
In the decision of the 1st Civil Chamber of the Court of Cassation dated February 26, 2026, E.2025/3581, K.2026/1467, the Supreme Council of Forensic Medicine (Adli Tıp Üst Kurulu) was earlier asked to resolve the conflict between the reports. After the reversal, the cancellation of title was accepted on the basis of an assessment finding that there was no capacity to act on the donation date, and the result was upheld. The settlement in the file was also examined separately for guardianship and waiver conditions. [4]
This decision shows that the first report is not always the final word. However, not every objection requires a new report; the deficiency or contradiction must be explained. An adverse result alone is not sufficient reason to disregard a scientific report.
Failure to establish incapacity does not amount to acceptance of the claim
In the decision of the 1st Civil Chamber of the Court of Cassation dated June 26, 2025, E.2024/3421, K.2025/3377, although health records existed from about five and about seven and a half years after the sale, sufficient data close to the transaction date could not be obtained. The expert report stated that no conclusion could be formed about the earlier date, and the rejection based on failure to prove incapacity was upheld. [5]
The outcome of that decision is not that "earlier transactions can never be examined". It is that the claim was not proven on the specific file. Nor can the expert's failure to reach a definite conclusion be interpreted in the claimant's favour on its own. For this reason, early investigation of records close to the transaction may affect the merits of the file.
Who brings the action and against whom?
If the owner is alive, the right belongs to that person; if they lack capacity to sue, the appropriate legal representation is required. In an action conducted through a guardian (vasi), the permissions of the guardianship authority and any conflict of interest are checked. The permissions for bringing the action under Article 462 TMK and for other transactions, as well as settlement and waiver, must also be assessed separately. [1]
If the owner has died, the joint ownership of the estate, the participation of all heirs or the appointment of a representative, and framing the claim as a return to the estate become important. A claim for a personal share of the inheritance cannot be raised in the same way against every third party. The defendant is, as a rule, the current registered owner; if removal of a mortgage is requested, the holder of the mortgage right is also assessed for that claim.
In an ordinary title cancellation dispute, the court with subject-matter jurisdiction is the civil court of first instance, and the court with exclusive territorial jurisdiction is the court of the place where the property is located. The decisions of the civil court of peace on guardianship matters and the main action for cancellation of title must not be confused. Mediation is assessed under the rules on the underlying relationship and on special conditions of action; no single mandatory requirement is set for all lack-of-capacity lawsuits. [2]
Is the title of a bona fide purchaser protected?
A purchaser who dealt directly with a person lacking capacity of discernment does not, as a rule, cure the initial lack of capacity merely because they did not know of the illness. However, if the property was later transferred to another person, the protection of that later person under Article 1023 TMK arises separately. The party to the first transaction must be distinguished from the later person who relied on the register. [1]
Whether the later owner knew of the dispute, their connection with the parties and the circumstances of acquisition are clarified. The same distinction is important for rights such as a mortgage created later. Each entry the title cancellation concerns, and each additional property right, is assessed on its own legal basis; a health report alone does not resolve the whole chain of transfers.
How are time limits, interim measures and alternative claims planned?
A claim for correction of a registration made without a right because of lack of capacity is not subject to the one-year period applicable to fraud. Nevertheless, pre-cadastral grounds, acquisition in reliance on the register, other special provisions and independent monetary claims are assessed separately. The statement "there is no time limit" must not lead to the loss of documents or to neglect of new transfers and procedural deadlines.
If there is a risk that the property will be transferred again, an interim injunction may be requested. For prima facie proof, the existing health records and the chain of transactions are presented; the scope of the measure and the security are assessed by the court. The request for enforcement of the decision must be made in time, and where it was obtained before the action, the complementary steps of the main action must be followed. [2]
Where lack of capacity is raised together with fraud (hile), abuse of a power of attorney or laesio enormis (gabin), the facts must be set out separately. The question of capacity must be assessed first; if capacity is found to be absent, the substantive requirements and own time limits of the other claims become important. Raising a lack-of-capacity claim does not by itself protect other rights subject to time limits.
If the title cannot be recovered, the persons responsible for price or loss claims and the legal basis are determined separately. The return of what was exchanged under an invalid sale may also arise. It cannot be accepted that a person lacking capacity, or their estate, must automatically pay every expense the purchaser claims; unjust enrichment, use and the relevant special provisions are examined.
What steps are needed at the end of the proceedings?
Court fees depend on the value of the claim, and the costs of inspection and expert examination depend on the research to be carried out. Appeal periods run from notification of the reasoned judgment; as a rule, the periods for appeal to the regional court of appeal (istinaf) and for appeal on points of law to the Court of Cassation (temyiz) are two weeks each, but whether a further remedy is open is determined separately. Enforcement of a judgment on a property right in the land registry requires finality and that the property matches the current register entry. [2]
For related topics, you may also read our articles on cancellation of title for abuse of a power of attorney, cancellation of title for a forged power of attorney and forged signature and action to annul a will, and our page on land title cancellation and re-registration actions.
Conclusion
In cancellation of title for lack of capacity, the capacity of discernment on the transaction date, rather than the name of the illness, must be the basis. Health records, witnesses' concrete observations, the guardianship file and the transaction documents complement one another. An expert report that addresses every transaction date should be evaluated together with proper representation and the correct structure of defendants. Advanced age or a diagnosis given later is not, on its own, a ground for allowing the claim; the fact that an official transaction was carried out is not, on its own, a ground for rejection.
Frequently Asked Questions
Does an Alzheimer's diagnosis automatically cancel the title?
No. How the disputed illness affected capacity of discernment on the transaction date is investigated. The date of the diagnosis and the date of the transaction may be different.
Is a health report required for every sale made at an advanced age?
Age alone is not the criterion that determines whether every sale is void or every claim is accepted. The concrete situation regarding capacity in the transaction and the applicable transaction rules are assessed.
Does appointing a guardian after the sale invalidate the earlier transaction?
Not automatically. Medical findings in the guardianship file may serve as evidence when the date of the earlier sale is investigated.
Can a person's capacity be examined after their death?
Yes. A retrospective expert assessment can be carried out on the basis of health records, transaction documents and other evidence. The sufficiency of the evidence affects the result.
Can I object to a forensic medicine report?
Yes. Missing documents, a wrong date, contradictions or unexplained scientific reasoning must be made specific, and the period running from notification of the report must be observed.
If lack of capacity cannot be proven, can the case still be won?
On this ground alone, acceptance does not follow automatically. Other legal grounds that have been duly raised are assessed according to their own requirements and time limits.
If the title is cancelled, is the bank's mortgage also deleted?
Not in every case. The date of the mortgage transaction, its legal basis, the position of the person who acquired it and the claim directed at the mortgage are assessed separately.
Can a guardian alone enter into a settlement or waiver?
The required guardianship permissions and the authority to represent must be checked. Signing a protocol does not mean that these conditions are met in every case.
Sources and legal bases
- Turkish Civil Code No. 4721 (Türk Medeni Kanunu), in particular Articles 9–16, 405–409, 426, 462, 640, 702 and 1023–1025.
- Law No. 6100 on Civil Procedure (6100 sayılı Hukuk Muhakemeleri Kanunu), in particular Articles 2, 12, 50–56, 190, 266–282, 345, 361, 367 and 389–397.
- Court of Cassation, 1st Civil Chamber, March 9, 2026, E.2025/871, K.2026/1851, decision text on Hukas.
- Court of Cassation, 1st Civil Chamber, February 26, 2026, E.2025/3581, K.2026/1467, decision text on Avarsis.
- Court of Cassation, 1st Civil Chamber, June 26, 2025, E.2024/3421, K.2025/3377, decision text on Avarsis.