What Is a Lifetime Maintenance Agreement?

A lifetime maintenance agreement is a synallagmatic (bilateral) contract type regulated under Articles 611 to 619 of the Turkish Code of Obligations (TCO No. 6098). Under this agreement, the party undertaking maintenance (the caregiver) assumes the obligation to care for and look after the other party (the maintenance creditor) until death. In return, the maintenance creditor transfers certain assets or rights to the caregiver. As its name suggests, the contract establishes an obligation that continues until the death of the maintenance creditor.

In Turkish legal practice, the lifetime maintenance agreement is a frequently used legal instrument, particularly for securing the care of elderly persons. However, this contract is also of great significance from an inheritance law perspective. The transfer of immovable properties or other assets by the decedent through a lifetime maintenance agreement directly affects the inheritance rights of other heirs. For this reason, the validity, requirements, and annulment of the contract frequently arise in inheritance law disputes.

Under TCO Art. 611, the essential elements of a lifetime maintenance agreement are: it is a bilateral contract, the caregiver assumes an obligation of care and maintenance, the maintenance creditor transfers a certain consideration (assets, rights, or income), and the contract continues until the death of the maintenance creditor. If any of these elements is missing, the contract cannot be classified as a lifetime maintenance agreement.

Formal Requirements of the Lifetime Maintenance Agreement

Under TCO Art. 612, a lifetime maintenance agreement must be concluded in the form of an inheritance contract. This means that the contract must be drawn up in official form, i.e., before a notary or judge of the court of peace, together with two witnesses. The official form requirement is a validity condition; failure to comply with this requirement renders the contract invalid.

The reason for the stringency of the form requirement is that the contract is a long-term transaction with significant consequences for both parties and is difficult to reverse. The maintenance creditor transfers all or a significant portion of their assets, while the caregiver assumes a maintenance obligation that may last for years. The official form requirement ensures that the parties' will is declared consciously and freely.

In practice, lifetime maintenance agreements are generally drawn up before a notary. For agreements involving real property transfers, registration at the land registry must also be carried out after the agreement is drawn up. If the real property transfer is not registered at the land registry, ownership does not pass to the caregiver, which may constitute a separate source of dispute.

A lifetime maintenance agreement made without compliance with the form requirement is entirely invalid. However, in some decisions, the Court of Cassation has been able to produce equity-based solutions where a long-term de facto care relationship has been established despite the form deficiency. Nevertheless, for legal certainty, the agreement must be made in official form.

Parties and Obligations of the Lifetime Maintenance Agreement

The contract has two parties: the maintenance creditor and the caregiver. The maintenance creditor is the party who requests the provision of care and maintenance; the caregiver is the party who assumes this obligation. Both parties must have legal capacity.

Obligations of the caregiver: Under TCO Art. 614, the caregiver is obligated to provide for the maintenance creditor's nutrition, shelter, clothing, and health needs as if they were a family member. The maintenance obligation is determined according to the purpose of the contract and the needs of the maintenance creditor. The caregiver's obligation continues until the death of the maintenance creditor, and adjustments must be made to accommodate changes in the maintenance creditor's needs during the contract.

Obligations of the maintenance creditor: The maintenance creditor is obligated to transfer the agreed consideration (immovable property, movable property, money, or other asset value) to the caregiver. The timing and manner of the transfer are determined in the contract. The transfer of immovable property must be registered at the land registry.

Proportionality between the parties' obligations is an important criterion in evaluating the contract. A gross disproportion between the value of the care service provided by the caregiver and the value of the assets transferred by the maintenance creditor raises the possibility that the contract may be fraudulent.

Annulment of the Lifetime Maintenance Agreement

A lifetime maintenance agreement can be annulled or terminated if certain conditions are met. TCO Art. 616 et seq. regulate the grounds for termination of the contract.

1. Disproportion between performances: Under TCO Art. 617, if there is a clear disproportion between the performance of one party and that of the other, the aggrieved party may terminate the contract by giving six months' notice. When evaluating this disproportion, the value of the transferred assets is compared with the value of the care service to be provided.

2. Failure of the caregiver to fulfill obligations: The caregiver's failure to fulfill the care and maintenance obligations arising from the contract constitutes just cause for termination. The maintenance creditor may request termination of the contract from the court by proving that the caregiver has failed to fulfill their obligations. In case of termination, the return of the transferred assets also comes into question.

3. Breakdown of personal relationship and loss of trust: Under TCO Art. 616, if the personal relationship between the parties deteriorates to the extent that continuation of the contract becomes unbearable, either party may terminate the contract. This situation arises particularly in cases where the trust relationship between the caregiver and the maintenance creditor has completely broken down.

4. Death of the caregiver: In cases where the caregiver dies before the maintenance creditor, the fate of the contract is debatable. Unless otherwise agreed in the contract, it may be possible for the caregiver's heirs to assume the maintenance obligation; however, this depends on the parties' intent and the contractual provisions.

Fraud Claims in Lifetime Maintenance Agreements

The lifetime maintenance agreement is one of the contract types most frequently subject to fraud claims in inheritance law practice. The typical example of muris muvazaasi (fraudulent conveyance by the decedent) is where the decedent transfers immovable properties through an apparent lifetime maintenance agreement without actually receiving any care service, with the aim of reducing or eliminating the inheritance rights of heirs.

The Joint Chambers of the Court of Cassation Decision dated 01.04.1974 explicitly evaluated the lifetime maintenance agreement within the scope of fraud. According to this decision, when the decedent transfers immovable property they actually intend to gift through an apparent lifetime maintenance agreement, heirs whose inheritance rights are harmed may file a title deed annulment and registration lawsuit.

The key criteria considered in proving fraud claims include:

Whether care was actually provided: Whether the caregiver actually provided care services is investigated. In cases where the maintenance creditor was able to sustain their life independently, was in good health, or was being cared for by others, a presumption of fraud may arise.

Age and health condition of the maintenance creditor at the contract date: Whether the transfer of properties by a person of advanced age and serious illness was intended to conceal assets from inheritance is evaluated.

Proportionality between the value of transferred assets and the care service: The transfer of highly valuable properties in exchange for short-term or inadequate care is a significant indicator that raises suspicion of fraud.

The maintenance creditor's relationship with other heirs: The existence of hostility between the decedent and certain heirs, or the intention to exclude certain heirs from inheritance, are presumptions that support fraud claims.

Degree of kinship between the caregiver and the maintenance creditor: The conclusion of the contract with a close family member (such as a child or grandchild), particularly to the exclusion of certain heirs, strengthens the fraud claim.

Lifetime Maintenance Agreement and the Action for Reduction (Tenkis Davasi)

When transfers made through a lifetime maintenance agreement violate the reserved shares of heirs, the action for reduction comes into play. Under TCC Art. 565/4, benefits provided by the decedent through a lifetime maintenance agreement may also be subject to reduction.

In an action for reduction, it is evaluated whether the assets transferred by the decedent through the lifetime maintenance agreement create a reserved share violation. If a reserved share violation is found, the court determines the reduction ratio and orders the return of the violated reserved share amount. In the action for reduction, restitution in kind is the principle, but if this is not possible, monetary restitution may also be ordered.

In practice, heirs may file both a fraud lawsuit and an action for reduction against a lifetime maintenance agreement. These lawsuits are generally filed in the alternative (primary claim: fraud; secondary claim: reduction). Even if fraud cannot be proven, a reduction decision may be rendered if there is a reserved share violation. This strategy provides the broadest protection of heirs' rights.

The prescriptive period for the action for reduction is one year from the date the reserved share violation was learned and in any case ten years from the decedent's death, under TCC Art. 571. The right to request reduction lapses upon the expiry of these periods.

Consequences of the Lifetime Maintenance Agreement for Land Registry Procedures

When immovable property is transferred through a lifetime maintenance agreement, the property is registered in the caregiver's name at the land registry. In this registration, a notation may be made on the title deed record indicating that the property was transferred pursuant to the contract. During the term of the contract, a mortgage or other security may also be established in favor of the maintenance creditor.

Under TCO Art. 613, when the maintenance creditor transfers their immovable property, they may request a statutory mortgage right on the transferred property to secure their rights arising from the contract. This mortgage right provides protection for the maintenance creditor in case the caregiver fails to fulfill the maintenance obligation. The statutory mortgage right must be registered in the land registry.

In case of termination or annulment of the contract, the issue of returning the property arises. When the court decides that the contract has been terminated or is invalid, it orders the return of the transferred property to the maintenance creditor (or their heirs). However, the caregiver may claim the value of the care services actually provided during the contract; this value may be offset against the assets to be returned.

Caregiver's Liability for Debts in the Lifetime Maintenance Agreement

Under TCO Art. 615, a lifetime maintenance agreement may also be established through the admission of the maintenance creditor to an institution. In this case, the relevant regulations and operating conditions of the institution become part of the contract. In agreements made through institutions, the financial condition and service quality of the institution are of separate importance.

The caregiver is generally not liable for the debts of the maintenance creditor. However, the contrary may be agreed in the contract. The tax debts, loan debts, and other financial obligations of the maintenance creditor are not affected by the transfer of assets; creditors may object to these transactions by claiming fraudulent transfer.

Court Decisions and Practice Regarding Lifetime Maintenance Agreements

The Court of Cassation has rendered numerous decisions regarding lifetime maintenance agreements. These decisions serve as guidance regarding the validity of the contract, fraud claims, and reduction requests.

According to the established case law of the Court of Cassation, for a lifetime maintenance agreement to be considered valid, a de facto care relationship must have been established. Merely entering into a formal contract is not sufficient; it must be proven that the caregiver actually provided care services and that the maintenance creditor needed such services. In cases where no de facto care relationship exists, the contract is deemed fraudulent and title deed annulment and registration is ordered.

The Court of Cassation also takes into account the degree of kinship between the parties. The conclusion of the contract by the decedent with only a specific child or relative, excluding other heirs, strengthens the presumption of fraud. Particularly in rural areas, the use of lifetime maintenance agreements for the transfer of immovable property to male children is a frequently encountered source of dispute.

Courts evaluate expert reports, witness testimony, medical reports, social investigation reports, and the fair market value of the property at the date of transfer together when assessing fraud claims. The most important factor affecting the outcome of the case is the proof of the existence or non-existence of a de facto care relationship.

Key Considerations When Drafting the Agreement

When drafting a lifetime maintenance agreement, attention should be paid to several important points to ensure the validity and enforceability of the contract.

Official form requirement: The contract must be drawn up before a notary or judge of the court of peace together with two witnesses; the official form requirement must be complied with. An agreement made in ordinary written form is invalid.

Concretization of the care obligation: The clear and detailed specification of the caregiver's obligations in the contract can prevent future disputes. It is recommended that matters such as nutrition, shelter, health services, and personal care be explicitly regulated.

Statutory mortgage right: The establishment of a statutory mortgage right by the maintenance creditor on the transferred property provides protection in case of a contractual breach.

Informing other heirs: Although not a legal requirement, informing other heirs about the contract can prevent future fraud claims and reduce intra-family disputes.

Documentation of the parties' capacity: Obtaining a medical report showing that the maintenance creditor, particularly if elderly or ill, has the capacity to discern, prevents future challenges to the contract on the grounds of capacity.

Finally, given the complex legal consequences of the lifetime maintenance agreement, it is of great importance to seek support from a legal professional in the preparation and evaluation of the contract. Incorrect drafting of the contract can lead to serious loss of rights for the parties.

This content has been prepared for general informational purposes and does not constitute legal advice. It is recommended that you consult an attorney for specific disputes.