NEWSLETTER-2020-metin

424 NEWSLETTER 2020 The Assembly of Civil Chambers of the Court of Cassation, in the aforementioned decision, has come to the following conclusions: “ In light of all of these explanations, in the case at hand that was opened based on the legal reason of simu - lation, although the immovable propery was transfered to the defendant before the land registry, it is obvious that the real intent of the transfer is not a sale, but a donation, regarding the plea on the amount paid in return for the transfer, and the defendant who does not have ability to pay was the wife of the legator /deceased. As such, even though there is simulation in terms of the Law of Obli - gations, it is necessary to prove that he acted with the intention to deprive his heirs of inheritance in the transfer transaction.” The Assembly of Civil Chambers of the Court of Cassation pri- marily accepts the existence of simulation and then, in compliance with its practices, we repeat that this is quite contestable, has searched for the answer of the question as to “whether this simulated transac- tion bears the intention to deprive the heirs of inheritance to be ac- knowledged as invalid,” and decided that this intention could not be proved, and added: “ On the other hand, it is clear that on the date of transfer 02.10.2001 the legator, born in 1915, and his wife (the defendant), born in 1928, are quite elderly. Therefore, taking into consideration that there are no other inheri - tors aside from the common children, it is not possible to evaluate the idea of protecting and securing his life partner, to whom he has been married since 1950, and who has undoubtedly undergone labor and support in the acquisition of the immovable as the intention to deprive his heirs of their inheritance.” Firstly, we are skeptical of this practice of the Court of Cassation’s attempt to identify the “ intention to deprive the heirs of inheritance, ” because this practice results in the conclusion that the simulated trans- action, since the Assembly of Civil Chambers of the Court of Cassa- tion explicitly accepts in its decision, is a valid transaction, without