WHAT IS COLLUSION IN A SURVIVORSHIP CONTRACT?
In old age or illness, the beneficiary may enter into a maintenance contract with one of the heirs or a third party to provide security for himself/herself or because of the fear of being alone. It is only possible to determine the will of the heir whether such a contract was actually concluded for consideration or for the purpose of evading the heirs. There are some criteria determined by the Court of Cassation to determine the will of the heir;
The fact that the care receivee is old or sick, and therefore in need of care, is a presumption that the contract is in consideration.
The fact that the contract continues for a long period of time and no lawsuit is filed by the maintenance creditor also strengthens the accelerated nature of the contract.
The ratio of the transferred assets to all assets plays an important role in determining the purpose of the maintenance creditor. If the transferred assets are reasonable, there can be no allegation of collusion, while in cases such as the transfer of all immovable properties, the allegation of collusion may be accepted.
The Court of Cassation seeks the existence of a special need for care in the maintenance contract concluded by the heir with his spouse.
The fact that the heir signed this contract shortly before his/her death and in his/her old age may indicate collusion.
In the socio-cultural structure of our country, sons are prioritized over daughters and collusive agreements may be made frequently.
The heirs who claim that the heir made the contract of maintenance until death in order to evade the inheritance can prove their allegations of collusion with all kinds of evidence since they are the third party to the collusive contract.
IS IT POSSIBLE TO REVOKE A MAINTENANCE CONTRACT UNTIL DEATH?
Since the contract of maintenance until death is an accelerated contract, as a rule, it cannot be revoked. However, if the care and supervision does not reflect the reality, a gratuitous contract arises. In this case, there will be a hidden donation, and in this case, the contract of maintenance until death will have to be subject to annulment pursuant to Article 565/1/4 of the TCC.
In other words, in the event that the heir acts with the intention of donation or violating the reserved share in a survivorship contract made by the heir, there may be a request for equalization by the heirs with reserved share for the assets transferred to the maintenance debtor.
