6 Legal Aspects of a Lifetime Care Agreement

6 Legal Aspects of a Lifetime Care Agreement. The “Contract for Lifelong Support” (Ölünceye Kadar Bakma Sözleşmesi), one of the most ancient yet currently relevant institutions of Turkish Law of Obligations due to modern demographic transformations, holds a unique position within our legal system. Regulated between Articles 611 and 619 of the Turkish Code of Obligations (TCO), this institution is more than a simple debt relationship between two parties; it stands at the intersection of inheritance law, property law, and social security law principles. Its legal significance is increasing, especially as individuals resort to this contract as a means of securing their future amidst an aging population structure, the acceleration of the nuclear family model, and the growing need for social care services.

This report will subject the contract for lifelong support to a detailed analysis over six main legal axes, in light of the wording of the legislation, theoretical debates in the doctrine, and the precedents of the Court of Cassation (Yargıtay) that have taken shape over the years. These six aspects cover: the legal nature and aleatory character of the contract, the strict form requirements and capacity at the establishment stage, the scope of the rights and obligations of the parties, the regimes for termination of the contract, issues of abatement (tenkis) and reserved shares (saklı pay) regarding inheritance law, and finally, “muris muvazaası” (collusion by the testator), which is one of the most complex areas of Turkish legal practice. Each heading will not only convey positive legal rules but also deeply examine the legal logic (ratio legis) behind these rules, concrete problems encountered in practice, and solutions.

I. Legal Nature, Definition, and Elements of the Contract

Understanding the legal nature of the contract for lifelong support plays a key role in resolving disputes arising from this contract. Under TCO Art. 611, it is defined as a contract where the care debtor undertakes to care for and look after the care creditor until death, and the care creditor undertakes to transfer an asset or some asset values to them. However, this simple definition is far from fully reflecting the complex legal structure the contract harbors.

1.1. In-Depth Analysis of the Aleatory (Chance-Dependent) Character

The most fundamental characteristic distinguishing this contract from other onerous contracts is its “aleatory” (dependent on luck/chance) nature. In classic exchange contracts (e.g., sale or lease), the balance between performances is certain or determinable at the moment the contract is established. However, in the contract for lifelong support, the scope and duration of the performances are indexed to an unforeseeable fact: the “lifespan of the care creditor.”

This uncertainty creates a risk element for both parties. For the care debtor, the risk is that the care creditor lives much longer than expected, and the cost or burden of care exceeds the value of the transferred asset. For the care creditor, the risk is passing away shortly after the contract is established, meaning the asset was transferred in exchange for a very short-term service. The legal order accepts that the parties knowingly and willingly undertake this risk. This acceptance leads to the conclusion that exorbitant imbalances occurring between performances in the future cannot, as a rule, be grounds for the cancellation or adaptation (hardship/improvision) of the contract. The reason underlying the Court of Cassation’s established precedents—that the care debtor is deemed to have performed their obligation and is entitled to the asset even if the care creditor dies shortly after the contract—is this aleatory character. This does not mean the contract is a “gambling” or “betting” contract, but it indicates a legal transaction where the element of chance is decisive in terms of economic results.

1.2. Onerous Element and Legal Classification: Distinction between Inheritance Law and Law of Obligations

The contract for lifelong support is a fully bilateral, onerous (mutual) contract. The performance of care and supervision constitutes the legal cause for the transfer of assets; conversely, the transfer of assets constitutes the legal cause for the care and supervision. However, this contract can fall under different legal disciplines depending on its elements. In doctrine and Court of Cassation decisions, it is observed that the contract is subject to a dual distinction: “Inheritance Law Character” and “Law of Obligations Character.”

Contracts with Inheritance Law Character: In cases where the care creditor appoints the care debtor as an heir or bequeaths a specific property to them in return for the care debt, the contract acquires an inheritance law character. In this case, the provisions of the Turkish Civil Code (TCC) regarding inheritance contracts (TCC Arts. 504-557) apply. Here, the care debtor can possess the assets only upon the death of the care creditor (via universal or particular succession).

Contracts with Law of Obligations Character: In cases where the assets are transferred to the care debtor during the lifetime of the care creditor through an inter vivos transaction (e.g., transfer at the land registry), the contract has a Law of Obligations character. In this case, provisions of TCO Arts. 611-619 apply primarily. This distinction directly affects many legal consequences, from form requirements to power of disposition, from termination results to statutes of limitation.

The table below presents a comparative summary of the fundamental differences and legal regimes between these two types:

1.3. Principle of Strict Personality and Exceptions

By the nature of the contract, the right to care is a “strictly personal” right. This right is specific to the person of the care creditor; therefore, it cannot be transferred to another, attached, or passed to heirs. This right automatically terminates upon the death of the care creditor. However, the situation is more flexible regarding the care debtor’s performance. As a rule, the care debtor is also obliged to perform their duty personally because the care creditor relied on the debtor’s personal characteristics when making the contract. Nevertheless, in light of modern legal requirements and the institutionalization of care services, it may not always be possible to speak of an absolute obligation for “personal performance.” Using assistants, hiring professional caregivers, or receiving institutional care services is possible upon the agreement of the parties or if necessitated by the situation. The Court of Cassation can stretch this personal nature, especially in cases such as the bankruptcy or death of the care debtor, by accepting alternative mechanisms for the continuation of the contract (e.g., converting to an annuity).

II. Parties, Capacity, and Conditions for Validity: Reasons for Strict Formalism

Since the contract for lifelong support imposes heavy obligations on the parties and usually involves the transfer of a large portion of assets, the legislator has tied the validity of this contract to strict form requirements and capacity conditions. These conditions are vital for the protection of the parties, the validity of declarations of intent, and the maintenance of public order.

2.1. Parties to the Contract: Real and Legal Persons

The parties to the contract are the “Care Creditor” and the “Care Debtor.”

• Care Creditor: Only real persons can be care creditors. The concept of “care and supervision,” being a human need, is inherently incompatible with legal entities. Since a company or foundation cannot age, fall ill, or be in need of care, a contract for lifelong support cannot be established in favor of a legal entity. The care creditor undertakes to transfer all or part of their assets via the contract.
• Care Debtor: The care debtor can be a real person or a legal entity. It is becoming increasingly common today for legal entities such as nursing homes, care centers, or foundations to be parties to contracts as care debtors. The performance of the care debtor continues throughout the life of the care creditor, and if it is a legal entity, this performance is fulfilled through personnel.

2.2. Capacity Conditions and Defects in Consent

For the contract to be established, it is essential that both parties have “full capacity,” meaning they must possess the power of discernment, be of age, and not be restricted (under guardianship).

• Power of Discernment (Mental Capacity): Since the vast majority of contracts for lifelong support are made during old age, whether the care creditor’s mental health was intact (issues like dementia, Alzheimer’s, senility) is the most frequently encountered ground for cancellation in practice. In such allegations, the Court of Cassation requires local courts not to be content with mere witness statements but to strictly obtain a report from the Forensic Medicine Institute or a fully equipped hospital indicating the capacity status at the date of the contract. A determination that the power of discernment was lacking at the date of the contract renders the contract absolutely null and void.
• Restriction: For a person under guardianship to make this contract, the consent of their legal representative (guardian) is not sufficient; permission decisions from the guardianship authority (Civil Court of Peace) and the supervisory authority (Civil Court of First Instance) may also be required. Otherwise, the transaction is “suspended invalid.”

2.3. Official Form Requirement: Form of Inheritance Contract

TCO Art. 612 ties the validity of the contract to the form of an “Inheritance Contract,” one of the heaviest form requirements in Turkish law. This form requirement implies more than a simple written contract or an arrangement at a notary; it mandates the transaction be performed in the presence of witnesses and an official officer.

• Scope of Officiality: As a rule, the contract must be made in the form of an “official deed” (düzenleme) by notaries or civil court judges. In this procedure, two witnesses must be present, the parties must declare their wills before the officer, and the witnesses must attest to this declaration.
• Authority of Land Registry Directorate: Under provisions of the TCO and Land Registry Law, land registry directors are also authorized to issue the official deed for contracts for lifelong support involving the transfer of immovable property. An official deed made at the land registry fulfills the inheritance contract form requirement. However, in practice, due to the contract containing complex Law of Obligations provisions such as termination, penal clauses, and details of care, it is often preferred for legal security to have the contract prepared in detail before a notary and then submitted to the land registry for registration.
• Exception for State Institutions: As a requirement of the social state principle, the legislator has eased the form requirement for contracts made with a state-recognized care institution. In contracts made with these institutions in compliance with conditions determined by authorized bodies, the “simple written form” is accepted as sufficient for validity. This exception aims to facilitate access to care services by reducing bureaucratic costs.

III. Performance Process, Scope of Obligations, and Legal Guarantees

After the contract is properly established, the performance phase begins. This phase is the most long-term period of the relationship between the parties and is most open to disputes. The nature of performances, time of performance, and legal guarantees the parties hold against each other are discussed in this section.

3.1. Obligation of the Care Creditor: Asset Transfer and Registration

The fundamental obligation of the care creditor is to transfer the agreed assets to the care debtor. This asset can be an immovable, a movable property, money, or a right.

• Moment of Transfer of Ownership: When ownership passes differs according to the authority where the contract was made. If the contract was made with an official deed at the land registry, the registration process occurs at that moment, and ownership passes to the care debtor. However, if the contract was made at a notary or before a civil judge, this transaction does not automatically transfer ownership; it only creates a “right to demand registration.” The parties must apply to the land registry with the notary deed to perform the registration separately.
• Protection of the Care Creditor’s Creditors: The care creditor may harm their own creditors by transferring their assets. In this case, other creditors of the care creditor (e.g., alimony creditors) can file an “Action for Cancellation of Disposition” to annul this transfer. Especially if the care creditor becomes unable to fulfill responsibilities towards persons to whom they owe alimony, these persons can request the cancellation of the contract. However, the judge may decide that the care debtor pays the alimony creditors instead of cancellation.

3.2. Statutory Mortgage Right: 3-Month Forfeiture Period

After transferring their immovable property, the care creditor faces the risk of the care debtor failing to fulfill obligations or going bankrupt. To protect the care creditor against this risk, the legislator has provided a very strong real security: “Statutory Mortgage Right.” Pursuant to TCO Art. 619, the care creditor can register a mortgage on the transferred immovable to secure the care debt.

The exercise of this right is tied to a critical period:

• Forfeiture Period: The care creditor must exercise this mortgage right within three months from the date of transfer of ownership of the immovable. This is a forfeiture period, not a statute of limitations; meaning, the right to demand a mortgage is completely extinguished after the period passes. The judge observes this period ex officio.
• Nature of the Guarantee: This mortgage ties the care claim to a real security. Even if the care debtor goes bankrupt or transfers the immovable to a third party, thanks to the mortgage right, the care creditor gains the opportunity to collect their receivable with priority. Registration is mandatory for it to be asserted against third parties.

3.3. Obligation of the Care Debtor: “Like a Child” Care Standard

The care debt is not limited to meeting material needs (food, shelter, clothing, pocket money); it also includes comprehensive moral support.

• Subjective and Objective Elements: The law and Court of Cassation precedents emphasize that the care debtor must treat the care creditor “like a child.” This standard is a criterion inspired by family law, involving high loyalty and duty of care. Providing doctors and medicine in sickness, taking them to the hospital, personal hygiene, and enduring the psychological difficulties and grumpiness brought by old age are within the scope of this debt.
• Debate on Obligation to Live in the Same House: In traditional legal understanding, living under the same roof (cohabitation) was accepted as essential for the performance of the care debt. However, modern living conditions and recent precedents of the Court of Cassation have stretched this understanding. According to recent decisions of Regional Courts of Justice and the Court of Cassation, depending on the will of the parties, their social status, and current conditions, the “obligation to live in the same house” is not absolute. The care debtor can also fulfill the debt by regularly meeting the needs of a care creditor residing in a separate house, visiting them, and organizing their cleaning and meals. What matters is not formal togetherness but the realization of the purpose of care and supervision.

3.4. Determination of Place and Scope of Performance

When determining the scope of the care debt, TCC Art. 4 (judge’s discretion) and TCC Art. 2 (good faith rule) come into play. The value of the assets transferred by the care creditor, their previous standard of living, and the social status of the parties are taken into account. According to Court of Cassation decisions, parties can freely determine the place, scope, and degree of performance in the contract. However, the “care and supervision” obligation, which is the essence of the performance, cannot be completely eliminated; for example, an agreement stating “only food will be provided, illness will not be attended to” would be deemed invalid as it is contrary to the nature of the contract and morality.

IV. Termination of Contract and Termination Regime: Retroactive and Prospective Consequences

Since the contract creates a continuous debt relationship, termination conditions and results differ from other contracts. Termination in this type of contract can produce results in the form of both “land registry cancellation” (retroactive) and “compensation/annuity” (prospective).

4.1. Termination Without Notice (TCO Art. 617)

If the relationship between the parties becomes “unbearable,” either party can terminate the contract immediately without giving notice (a period).

• Concept of Unbearableness: Behaviors contrary to the contract, the collapse of the trust relationship between parties, domestic violence, heavy insults, the care debtor’s constant neglect of obligations, or the care creditor making cohabitation impossible by constantly causing trouble are accepted as “important reasons” making the continuation of the contract impossible.
• Retroactive Termination and Consequences: When the contract is terminated for this reason, as a rule, the termination produces retroactive (ex tunc) results. That is, parties return what they received as if the contract had never been made. The care creditor requests the cancellation of the title deed of the transferred immovable and its registration in their name. In return, the care debtor can demand the value of the care service performed up to that date (within the framework of unjust enrichment provisions). Additionally, the at-fault party is obliged to compensate the negative damage suffered by the other party.

4.2. Annuity (Lifetime Income) Alternative

The judge is not obliged to completely eliminate the contract in every termination request. TCO Art. 617/2 grants the judge wide discretion. Evaluating the characteristics of the parties and the circumstances of the event, instead of completely terminating the contract, the judge may decide to end the “living in a family community” relationship and order the care debtor to pay a certain lifetime income (annuity) to the care creditor. This solution is preferred especially in cases where the care debtor is partially at fault but complete termination would be inequitable, or where the care creditor is simply uncomfortable living together. Thus, the care creditor does not take back the property but gains a guaranteed regular income for life.

4.3. Termination Due to Death and Bankruptcy

• Death of the Care Creditor: This is the natural cause for termination. With the death of the care creditor, the care debt ends, and ownership (if transferred) is finalized in the care debtor. As a rule, heirs cannot claim rights retroactively.
• Death of the Care Debtor: If the care debtor dies before the care creditor, the contract does not automatically terminate. The care debt passes to the heirs of the care debtor. However, the care creditor is not obliged to deal with heirs they do not know or trust. Therefore, the law grants the care creditor the right to unilaterally terminate the contract within one year from the date of death. This one-year period is a forfeiture period. The heirs of the care debtor, however, cannot terminate the contract solely on the grounds that “the care debtor died.”
• Bankruptcy of the Care Debtor: In case of the care debtor’s bankruptcy, the care creditor can claim from the bankruptcy estate a sum equal to the principal value (capital value) necessary for the continuation of the contract, instead of the value of the service performed until that date. This regulation aims to secure the care creditor’s future.

V. Relation with Inheritance Law: Abatement (Tenkis) and Reserved Share Violations

Since the contract for lifelong support causes a significant reduction in the testator’s assets, it carries the potential to conflict with the mandatory provisions of inheritance law, especially “reserved share” rules.

5.1. Rule: Principle of Non-Subjectivity to Abatement

According to the established precedents of the Court of Cassation, the contract for lifelong support is an “onerous” (mutual) contract. The testator transferred assets in return for a consideration (care service). Therefore, as a rule, this contract is not subject to abatement (reduction). That is, heirs with reserved shares (children, spouse) cannot directly file an action for abatement claiming “our father gave the house to the caregiver, our rights were violated.” Because the testator has the freedom of disposition over their assets during their lifetime, and onerous dispositions are outside the scope of abatement.

5.2. Exception: Intent to Violate Reserved Share and Action for Abatement

However, this rule is not absolute. If the testator’s primary purpose was not to secure care but solely to violate the reserved share of the heirs (intent to donate / animus donandi), then abatement provisions can be applied.

• Principle of Disproportion: If there is a gross disproportion between the value of the transferred asset and the cost of the care obligation, this situation can be considered an indication (presumption) of “intent to damage the reserved share.” However, the Court of Cassation emphasizes that disproportion alone does not make the contract subject to abatement, as the contract is aleatory (dependent on chance). In other words, the care debtor gaining entitlement to the entire asset even if the creditor lives for a very short time is in the nature of the contract.
• Burden of Proof: In an action for abatement, the burden of proof lies with the plaintiff heir to prove that the testator exceeded the disposable portion and violated the reserved share, and furthermore, did this “knowingly and willingly” (intent element). Heirs must prove under TCC Art. 565 that the seemingly onerous transaction was actually a “hidden donation.”

The table below summarizes the basic parameters regarding the Action for Abatement (Tenkis):

VI. Muris Muvazaası (Collusion by the Testator to Evade Inheritance) and Judicial Review

In practice, the area where contracts for lifelong support are most frequently litigated and where the most complex legal processes occur is “Muris Muvazaası” (Collusion by the Testator) cases. These cases are based on the claim that the contract exists “in form” but serves another purpose “in reality.”

6.1. Definition of Collusion and Decision of Joint Chambers of Rulings dated 01.04.1974

Muris muvazaası is when a testator, with the aim of depriving their heir of inheritance rights, transfers a registered immovable they actually wish to donate by showing it as a sale or a contract for lifelong support at the land registry. In this case, there is an agreement between the testator and the counterparty that the “apparent transaction” (care contract) is invalid, while the “hidden transaction” (donation) is valid.

The Decision of the Court of Cassation Joint Chambers of Rulings dated 01.04.1974 and numbered 1/2 is the fundamental text determining the legal regime in this regard. According to this decision:

1. The apparent transaction (care contract) is invalid due to collusion as it does not reflect the true will of the parties.
2. The hidden transaction (donation) is invalid due to lack of form since it does not meet the form requirements (it was not done officially as a donation but shown as a sale/care contract at the land registry).
3. Consequently, all heirs whose inheritance rights are infringed, whether they have a reserved share or not, can file a lawsuit to request the cancellation of the title deed registration and registration in their name in proportion to their inheritance shares.

6.2. Determination of Collusion: 4 Basic Criteria of the Court of Cassation

Whether a contract for lifelong support carries a genuine purpose of care or an aim of asset smuggling (collusion) is determined by four basic criteria developed by the Court of Cassation:

1. Age, Physical and General Health Status of the Testator: It is examined whether the testator was truly in need of care at the date of the contract. However, the Court of Cassation states that “not being in special need of care at the date of the contract” does not alone constitute collusion. Because individuals can also make this contract with the aim of securing future potential care needs (insurance logic). What matters is the possibility of a care need that is consistent with reason and logic.
2. Distribution and Ratio of Assets: What is the ratio of the transferred asset to the entire estate? If the testator transfers the only valuable asset to one child and leaves others completely deprived, the possibility of collusion strengthens. However, if a reasonable portion of the assets was transferred and inheritance was left to other heirs as well, the contract is closer to being considered valid.
3. Family Relations and Human Situation: How are the relations between the testator and the plaintiff heirs? If the heirs remained indifferent to the testator and left them to loneliness, the testator transferring their property to the person caring for them (or the caring child) is seen as a result of “gratitude” and collusion is not accepted. However, if there is no hostility between the testator and heirs and assets were smuggled without reason, the collusion claim is taken seriously.
4. Reasonable Limit and Balance of Consideration: Is the balance between the value of the assigned property and the estimated value of the care debt reasonable? “Donating a mansion to someone who gives a glass of water” is contrary to the ordinary course of life. However, it should not be forgotten that the care service has a moral counterpart beyond its material value.

6.3. Distinction from Party Collusion

While Muris Muvazaası is based on the relationship between heirs (third parties) and the testator; “Party Collusion” refers to the collusion between the parties to the contract themselves. The Court of Cassation states that heirs continuing a termination lawsuit filed by the care creditor upon the creditor’s death does not transform the case into a “Muris Muvazaası” case, noting that the legal grounds and means of proof for these two cases are completely different. In party collusion, parties generally have to prove their own collusion with written evidence, whereas in Muris Muvazaası, heirs can prove their claims with all kinds of evidence, including witnesses.

Conclusion

The contract for lifelong support is a vital institution in Turkish law that secures the quality of life of the elderly and complements the social state principle in the field of private law. However, as this report reveals, the contract is not just a simple “house transfer in return for care” transaction. Its structure dependent on luck and chance, strict form requirements, tension with inheritance law, and risk of collusion make this contract one of the most delicate balances of our legal system.

In summary, the following 6 aspects are decisive from a legal perspective:

1. Nature: The contract carries an aleatory (results unknown beforehand) and onerous character. This is the strongest argument for the defense in cancellation and abatement cases.
2. Form: It is mandatory to be made in the form of an official will (arrangement); otherwise, it is null and void with absolute invalidity.
3. Guarantee: The “statutory mortgage registration right” with a 3-month duration granted to the care creditor is a guarantee often neglected but of vital importance.
4. Termination: The concept of “unbearable condition” is interpreted broadly by the Court of Cassation, but the balance between retroactive results of termination (title deed cancellation) and prospective results (annuity assignment) is at the discretion of the judge.
5. Abatement: As a rule, it is not subject to abatement. Abatement is only possible by overcoming a heavy burden of proof such as “intent to violate reserved share.”
6. Collusion: The biggest risk area is “Muris Muvazaası.” The validity of the contract depends on passing the “genuine care will,” “reasonable balance,” and “familial reasons” test developed by the Court of Cassation within the framework of the 1974 Joint Chambers of Rulings Decision.

It is essential for practitioners, when arranging this contract, to pay attention not only to form requirements but also to ensuring the true wills of parties are reflected in the minutes, doctor reports are obtained completely, and especially that the asset transfer is not of a magnitude to completely exclude other heirs (reasonable balance), in order to prevent long and costly judicial processes that may arise in the future.