Contract of Maintenance Until Death — Conditions, Validity and Termination

What is a contract of maintenance until death? A comprehensive legal guide to its conditions under TBK Arts. 611-619, the required official form, termination, allegations of collusion, the abatement action and the rights of heirs.

What Is a Contract of Maintenance Until Death?

A contract of maintenance until death is a contract, governed by Articles 611 to 619 of the Turkish Code of Obligations No. 6098, that places both parties under obligations. The maintenance debtor undertakes to care for and look after the maintenance creditor until death; the maintenance creditor undertakes to transfer an estate or certain assets. The contract creates an obligation lasting until the maintenance creditor's death.

A contract of maintenance until death is a legal instrument that may be used to meet a need for care. A deceased's transfer of an immovable or another asset by such a contract may affect the interests of the other heirs. The validity, performance and termination of the contract, and allegations of collusion and abatement, are therefore examined separately from one another.

Under TBK Art. 611 the fundamental elements of the contract are the maintenance debtor's undertaking to provide care and attention and the maintenance creditor's undertaking to transfer the agreed asset. The legal nature of the contract is determined by reference to the parties' true intention and to the agreed obligations as a whole.

The Formal Requirement for a Contract of Maintenance Until Death

The contract is as a rule made in the form of an inheritance agreement: drawn up before an authorised public officer with the participation of two witnesses, in accordance with TMK Art. 545 and the provisions on official wills. The transfer of an immovable additionally requires an official deed and registration. Under the exception in TBK Art. 612, written form suffices for a contract made by a state-recognised care institution in compliance with the conditions laid down by the competent authorities.

Parties to the Contract and Their Obligations

The parties to the contract are the maintenance creditor and the maintenance debtor. The maintenance creditor claims the obligation of care and attention; the maintenance debtor undertakes it. The parties' capacity to contract is assessed by reference to their position at the time the contract was made.

The maintenance debtor's obligations: under TBK Art. 614 the principal obligations are to take the maintenance creditor into the family household and provide suitable food and accommodation, and to care for them with due diligence and provide a physician in the event of illness. The scope of the obligation is determined by the contract, by equity and by the maintenance creditor's actual needs.

The maintenance creditor's obligation: the maintenance creditor is obliged to transfer to the carer the consideration agreed in the contract (an immovable, movable property, money or another asset). The time and form of the transfer are specified in the contract. The transfer of an immovable must be registered in the land register.

The balance between the parties' obligations is important in assessing the contract. A significant disproportion between the obligation of care and the value of the assets transferred may give rise to a right of termination under TBK Art. 616; it does not of itself amount to collusion.

Termination of a Contract of Maintenance Until Death

Where there is a significant disproportion between the obligations and the party receiving more cannot prove that a gift was intended, the other party may terminate the contract at any time on six months' notice (TBK Art. 616). Where there is an important reason making continuation of the contract intolerable, termination without notice, or conversion of the relationship by the judge into a life annuity contract, falls within TBK Art. 617.

If the maintenance debtor dies, the maintenance creditor may terminate the contract within one year (Art. 618). Where the maintenance creditor has lost the ability to perform their duty towards persons to whom they owe a statutory maintenance obligation, those persons may seek annulment of the contract on the conditions in Art. 619.

Allegations of Collusion in a Contract of Maintenance Until Death

That the need for care had actually begun at the date of the contract is not a condition of validity. Failure to provide care at all or as required is primarily a question of performance, damages and termination; it does not of itself constitute collusion. Whether the true intention was to make a gift is examined by reference to the maintenance creditor's age and health, their reasonable motive, the whole of their assets, the proportion of the value transferred and the care actually provided. Kinship or a short period of care is not of itself a presumption of collusion.

Contracts of Maintenance Until Death and the Abatement Action

The contract is onerous; not every disposition is automatically subject to abatement. An intention to defeat reserved shares, the true value of the counter-obligation and any part left without consideration are examined within the framework of TMK Art. 565/4. The consequence of abatement is determined by the divisibility and elective rights in TMK Art. 564 et seq.; restitution in kind is not the only possible outcome in every case.

Land Registry Consequences of a Contract of Maintenance Until Death

The immovable passes to the maintenance debtor by registration; the contract itself does not transfer ownership merely by way of an annotation. TBK Art. 613 grants the maintenance creditor a security over the immovable they have transferred, similar to a seller's statutory mortgage right. Registration, mortgage and deletion procedures are carried out separately in the land register.

The Carer's Liability for Debts

The maintenance debtor does not automatically assume all the maintenance creditor's existing debts. Even where an assumption of debt is agreed in the contract, the conditions in the Code of Obligations as to internal and external assumption and the creditor's consent are required. The maintenance debtor's fundamental obligation is faithfully to perform the accommodation, food, attention and care obligations specified in the contract.

Case Law and Practice on Contracts of Maintenance Until Death

In practice, form, capacity of the parties, true intention, the scope of care, performance and termination are treated separately. A shortfall in the care actually provided does not automatically render a valid contract collusive; an intention to make a gratuitous disposition must be separately proved.

Points to Bear in Mind in Drawing Up the Contract

The following points in particular should be clearly settled in a contract of maintenance until death:

• Form: the contract should as a rule be drawn up in the form of an inheritance agreement, before a public officer and with the participation of two witnesses. Written form suffices under the recognised care institution exception in TBK Art. 612.
• Scope of care: the obligations as to food, accommodation, health care and personal care should be specified according to the parties' needs and expectations.
• Statutory mortgage right: the registration conditions and duration of the maintenance creditor's statutory mortgage right arising under TBK Art. 613 should also be observed.
• Informing the other heirs: this is not a legal requirement, and having informed them does not of itself prove the validity of the contract or the absence of collusion.
• Capacity: where capacity of discernment is in doubt, an expert medical assessment close to the date of the transaction may be useful; a report does not by itself conclusively dispose of all questions of capacity.

The formal, land registry, care, termination and succession law consequences of the contract must be assessed together. A defective contract can lead to serious loss of rights.

This content has been prepared for general information purposes and does not constitute legal advice. You are advised to consult an attorney in relation to specific disputes.

Frequently Asked Questions

What form is required?

As a rule the form of an inheritance agreement; written form suffices under the recognised care institution exception.

What is the difference between TBK Arts. 616 and 617?

Art. 616 applies to disproportion, with six months' notice; Art. 617 to termination without notice, or conversion, for an important reason.

What happens if the maintenance debtor dies?

The maintenance creditor may terminate within one year.

Is a failure to provide care automatically collusion?

No; breach of contract and termination come first, and collusion is examined separately if an intention to make a gift is present.