What is a Contract for Lifetime Care?
In general, a contract for lifetime care is an agreement made by individuals with financial means who, especially during old age or illness, need someone to care for, watch over, and show close attention to them. In this contract, one person (the care recipient) undertakes to transfer their assets or property to another person. The other person, in turn, assumes the obligation to care for, meet the needs of, and watch over the care recipient until their death.
The contract for lifetime care is regulated under Article 611 of the Turkish Code of Obligations.
Article 611 – The contract for lifetime care is an agreement whereby the care provider undertakes to care for and watch over the care recipient until their death, and the care recipient undertakes to transfer to the care provider one or more assets or property values.
How is a Contract for Lifetime Care Made?
Article 612 of the Turkish Code of Obligations states that the contract must be made in the form of an “inheritance contract.” This article is a validity requirement for the contract. However, there is an exception to this rule. If the contract is made by a state-recognized care institution in accordance with the conditions determined by the authorized authorities, a written form is sufficient for its validity. The contract for lifetime care must be drawn up by a magistrate judge, a notary, or another official authorized by law. During the drafting of the contract, two witnesses must also be present. In practice, contracts for lifetime care are usually prepared officially by notaries.
Conditions of the Contract for Lifetime Care
- The contract must be made by mutual agreement: The contract should be formed through mutual consent, with the intention of both parties.
- The parties must be authorized: Both the care recipient and the care provider must be legally authorized to enter into the contract.
- Presence of witnesses: The contract is executed similarly to an official will. Therefore, two witnesses must be present before the official preparing the contract, attest to the proper formation of the contract, and sign it.
- The assets must belong to the care recipient: The assets subject to the contract must belong to the care recipient. Assets belonging to third parties cannot be used within the scope of this contract. Rights over immovable property cannot be transferred through this contract.
- The parties must live in the same household.
- The contract must be drafted in writing.
Parties to the Contract for Lifetime Care
The parties to the lifetime care contract are the care beneficiary and the care obligor. The parties must have the capacity to distinguish and be legally competent adults; they must not be under any legal restrictions.
Termination of the Contract for Lifetime Care
Rescission of the Contract: According to Article 616 of the Turkish Code of Obligations, if there is a significant imbalance in the obligations between the care obligor and the care beneficiary, and the party who gains more under the contract cannot prove that this is a gift, the party noticing the imbalance has the right to notify termination of the contract at any time. The contract terminates retroactively six months after the termination notice due to this imbalance.
Article 617 of the Turkish Code of Obligations regulates termination without notice. According to this article, if the continuation of the contract becomes impossible due to breach of contractual obligations or the presence of serious reasons making continuation unfeasible, either party may terminate the contract without prior notice. If the contract is terminated without notice for one of these reasons, the at-fault party must return what they received to the non-faulty party and pay compensation for any damages incurred by the non-faulty party.
Death of the Care Obligor: If the care obligor dies, the care beneficiary may request termination of the contract within one year. In this case, the care beneficiary may claim from the care obligor’s heirs an amount equal to what they would have been entitled to receive from the bankruptcy estate, in case of the care obligor’s bankruptcy.
Reduction Lawsuit in the Contract for Lifetime Care
Heirs of the care recipient may file a reduction lawsuit if they believe their reserved shares in the inheritance are at risk due to the lifetime care contract. If the care recipient’s only asset is a car and they transfer this car to the care debtor, the heirs can file a reduction lawsuit to protect their reserved shares in the inheritance.
Competent and Authorized Court
According to the regulation in the law, the competent and authorized court is the Civil Court of First Instance in the location where the immovable property, whose transfer is agreed upon in the lifetime care contract, is situated.
Fraudulent Contract in Lifetime Care Agreement
Simulated Transaction refers to a situation where the parties’ true intentions differ from the apparent transaction they perform. It is common for a testator to resort to simulation in order to divert assets away from heirs. If the testator intends to hide assets from the heirs, they may transfer their property to a third party under the guise of a lifetime care agreement, even though there is no real obligation to provide care. If the heirs claim that this transaction was made to deprive them of their inheritance, they can file a lawsuit for simulation of the testator’s intent, requesting the cancellation of the property deed and registration in their own names.
Sample Supreme Court Decisions
14th Civil Chamber, Case No. 2016/13864, Decision No. 2019/6362.
“Case Law Text”
Upon the petition submitted by the claimant on 13/01/2016 requesting the opening and reading of the lifetime care contract, following the hearing, the decision dated 25/05/2016, which determined the invalidity of the lifetime care contract, was requested to be reviewed by the debtor of the care obligation at the Supreme Court. After the acceptance of the appeal petition deemed timely, the file and all documents within were examined and the following was decided:
_ D E C I S I O N _
The request concerns the opening and reading of the lifetime care contract.
According to the letter dated 13.01.2016 from the … Notary Office, it was stated that the decedent … passed away on 14.12.2015, that there was a lifetime care contract of the decedent, and this was sent as an attachment in accordance with Article 69/2 of the Notary Law.
The court found that …, born on 17.03.1923, registered in the population of … neighborhood, house number 495, died on 14.12.2015. It was also understood that the decedent had transferred the immovable property subject to the lifetime care contract registered with … Notary Office under record number 6554 dated 28/08/2012 to … before death. Therefore, it was decided to determine the invalidity of the lifetime care contract.
The judgment was appealed by the care debtor.
Article 69 of the Notary Law states: “Notaries keep wills given openly or secretly and prepare a record thereof. Both the wills thus kept and other death-related dispositions prepared by the notary are reported in writing to the population registry offices where the individuals are registered, for notification upon their death. Upon receiving a death notification or official document from the population administration, notaries deliver certified copies of wills kept in their offices and death-related disposition documents prepared by the notary to the public prosecutor’s office, to be submitted to the competent peace judge.”
A will is a gratuitous disposition by which a person disposes of their property within the limits set by law, effective after their death. A testament (will) is a written declaration of will containing testamentary dispositions made in the forms prescribed by law and revocable by the testator until death.
A death-related disposition is a legal transaction such as a will or inheritance contract that produces legal effects and consequences after the death of a natural person.
A lifetime care contract is an agreement whereby one party undertakes to provide care and supervision to the other until death in exchange for the transfer of an asset or assets. In other words, a lifetime care contract is a bilateral contract imposing mutual obligations, which takes effect upon signing, unlike death-related dispositions that become effective after death. A lifetime care contract is not a death-related disposition.
In light of the above explanations, regarding the concrete case, the court’s written decision to reject the request for the reading of the lifetime care contract at the … Notary Office was found incorrect, and therefore the judgment must be overturned.
CONCLUSION: For the reasons explained above, the judgment is REVERSED, and the advance court fee shall be refunded to the depositor upon request. This decision was made unanimously on 08.10.2019.
16th Civil Chamber, 2007/1263 E., 2007/1380 K.
Objection to Cadastral Determination
“Case Law Text”
As a result of the lawsuit arising from the cadastral determination between the parties, the request for review of the judgment by the Court of Cassation was considered; it was understood that the appeal request was filed within the legal time limit, the examination report and the documents in the file were read, and the necessary deliberation was made:
In its reversal judgment, the Court of Cassation emphasized in summary: “All evidence related to the parties’ claims and defenses should be requested and collected; if available, the submission of a contract of maintenance until death should be requested and the file should be completed before conducting an on-site inspection. If such a contract is presented during the inspection, the contract of maintenance until death and the deed of sale should be examined and their scope determined. Local expert witnesses and party witnesses should be heard to gather detailed information on the sale of the property, any existing maintenance agreements, whether the obligations imposed by the contract on the defendant were fulfilled, and the delivery and use of the property. Since a conclusion contrary to the determination has been reached, the cadastral experts should be heard as witnesses.”
Following the trial conducted in accordance with the reversal decision, the court ruled for the registration of the disputed parcel as determined; the judgment was appealed by the plaintiff İbrahim.
The court ruled that there was no contract of maintenance until death between the parties regarding the disputed parcel, but that the parcel in question had been given to the defendant in exchange for a promise of maintenance until death; that the defendant had cared for his mother for approximately 1.5 years; and that the defendant Osman had merged the land he had purchased from the plaintiff Fatma with his own parcel based on the deed of sale dated 31.10.2002. However, the conclusion reached does not align with the content of the case file.
It was determined that the deed of sale dated 31.10.2002, on which the defendant relied, did not meet the conditions set forth in Article 297 of the Code of Civil Procedure and was not a valid deed. Furthermore, the plaintiff Fatma stated that the deed of sale was issued in return for her son, the defendant Osman, caring for her until her death. This was confirmed by the local expert witnesses and party witnesses. However, they also reported that the defendant had failed to fulfill the obligation to care for his mother until her death. Therefore, the condition of the conditional gift agreement was not fulfilled.
In this case, according to the expert report dated 15.12.2006, the portion of 953.27 square meters marked with the letter (G), which was stated to have been purchased by the defendant Osman from his mother Fatma, should be separated from the property and registered in the names of Fatma’s heirs in proportion to their inheritance shares. The portion marked with the letter (F) on the map should be registered in the name of the defendant Osman.
The judgment issued contrary to this is found to be incorrect, and for these reasons, the appeal objections are accepted and the judgment is hereby REVERSED unanimously on 19.04.2007.
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