Contracts in which the care debtor undertakes to take care of the care creditor until his death, and the care creditor undertakes to transfer all or some of his assets to him in return for the care act are called “Contract For Lifelong Support”.
In this contract, which imposes debts on both parties; The maintenance debtor undertakes to take care of the maintenance creditor throughout his life, to show the necessary care in maintenance and to meet the needs agreed within the framework of the contract. The care creditor, on the other hand, has undertaken or transferred the debt of transferring all or part of his assets to the care debtor as a counter deed. The subject matter of the contract does not have to be the property of the maintenance creditor at the date of the contract. Goods that are thought to be acquired in the future may also be the subject of the contract. In order for a property belonging to a third party to be the subject of this contract, the contract must be signed and approved by the third party.
In order for this contract to be valid, it must be in the form of an inheritance contract according to article 612 of the Turkish Code of Obligations. If we examine the validity conditions of the inheritance agreement; It must be drawn up in the form of an official will conditions, that is, by the officer with the participation of two witnesses. While the contract is being drawn up, the official, the witnesses and the parties should be together while the contract is being drawn up and signed. The authorized official can be a Notary Public, a Magistrate or a Land Registrar for contracts whose subject is only immovable property. You can find detailed information about how the official will is drawn up in our related article.
In article 612/2 of the Turkish Code of Obligations, if the care debtor is an institution recognized by the state, the ordinary written form is considered sufficient. Accordingly “If the contract is made by a State-recognized care institution in accordance with the conditions determined by the competent authorities, the written form is sufficient for its validity.”
In the decision of the 16th Law Department of the Court of Cassation dated 11/05/1992 M. 1991/7828 and Dcs. 1991/6695; In the event that the provisions of the contract, which are contrary to the form condition, have been fulfilled for a long time, it has been considered as a violation of the rule of good faith and abuse of right for both the heirs and the maintenance creditor to assert the violation of the form condition. According to that decision “…The parties to the contract have fully fulfilled the obligations stipulated by the invalid contract as if there was a valid contract. The care creditor did not object to this situation in his health. If the care creditor does not object, the heirs can no longer rely on the invalidity of the contract…”
In accordance with Article 613 of the Code of Obligations, the maintenance creditor, who has transferred an immovable to the maintenance debtor, has the legal right of mortgage on this property, like the seller, in order to secure his rights. Since it is said “like a seller”, if there is a balance receivable due to the sale transaction, a mortgage can be placed on the immovable upon the request of the seller within 3 months.
If the care creditor loses the opportunity to fulfill his obligations to his dependents according to the law due to the care contract until his death, those who are deprived of this can request the cancellation of the contract. If cancellation is requested, the judge may decide that the maintenance debtor should give alimony to the beneficiaries. The alimony given to them can be deducted from the things to be given to the care creditor.
Due to the heirs’ reserved shares, the right of the creditors of the maintenance creditor to file a lawsuit for the cancellation of the contract for the portion exceeding these amounts is reserved. It is clear that the difference is subject to proportion of hidden share of the assets transferred by the care creditor is clearly and significantly more than the care and supervision value it has acquired or will receive.
The real desire of the inheritor may be to donate his assets to the people with whom he has contracted and to smuggle property from the heirs. In these cases, due to collusion, the contract for lifelong support will be invalid, as it is not in accordance with the real will of the parties.
In cases where the real desire is a contract of donation, the contract of care until death will be deemed invalid as it does not meet the formal conditions in terms of deeded immovables.
In this regard, in the decision of the Supreme Court of Appeals General Assembly dated 22/01/2003 M. 2003/1-2, Dcs. 2003/2, the points to be considered in the examination of whether the contract of looking after death is collusive or not. According to that decision “…For the validity of the assignment made with the condition of looking after, it is not obligatory for the care creditor to be in need of special care at the date of issuance of the contract. The fact that this need arises after the contract or that it lasted for a very short time until the death of the creditor cannot affect the validity of the contract. As for the concrete case, it is understood that the immovable parcel numbered 1217, which is in contention, was assigned to the defendant with a contract until his death. However, sufficient evidence has not been gathered whether the real purpose of the inheritor is to transfer with care until he dies or to smuggle fake goods. As such, it is inappropriate to firstly ask the relevant authorities whether the legator has any other immovable property, to receive a certificate of inheritance, to listen to the witnesses of the parties and to make a decision based on the result by conducting a research within the framework of the above principles…”
According to Article 616 of the Code of Obligations, there is a significant disproportionateness between the acts of the parties and if the party receiving the surplus cannot prove that the donation was intended, the other party may terminate the contract at any time, provided that six months’ notice is given. The actions performed in the period until the termination of the contract are evaluated together with the principal and interest, and are returned to the creditor as a result of the balancing.
In Article 617 of the Code of Obligations, the termination of the contract is regulated without seeking notice. Accordingly, if the continuation of the contract becomes unbearable due to the breach of the obligations arising from the contract or if other important reasons make the continuation of the contract impossible or extremely difficult, each party may terminate the contract without prior notice. If the contract is terminated for any of these reasons, the faulty party returns what he received and is obliged to pay the faultless party an appropriate compensation for the damage suffered as a result.
Another situation that causes termination of contract is regulated as the death of the care debtor in Article 618 of the Code of Obligations. In this case, the contract does not automatically expire. With the death of the maintenance debtor, the debt arising from the contract is assumed by the heirs of the maintenance debtor. If the heirs agree with the care creditor, the contract continues. However, if they cannot come to an agreement, the care creditor may request the termination of the contract within 1 year, regardless of any form condition.
As in every contract made, getting legal support from an expert lawyer in the establishment or cancellation of the contract until your death will prevent you from losing your rights. You can always contact us for information and assistance
