WHAT IS COLLUSION IN A MAINTENANCE CONTRACT UNTIL DEATH?
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 is actually. Made in return 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 receivable 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 acceleration nature.
The ratio of the transferred assets to the total assets plays an important. Role in determining the purpose of the maintenance creditor. If the transferred assets are reasonable, the claim of collusion cannot be mentioned. Whereas in cases such as the transfer of all immovable properties, the claim 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 death and in his old age may indicate collusion.
In the socio-cultural structure of our country. Sons are favoured over daughters and collusive agreements. Can 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 CRITICISE THE MAINTENANCE CONTRACT UNTIL DEATH?
Since the contract of maintenance until. Death is an accelerated contract, as a rule, it cannot be cancelled. However, if the care and supervision. Does not reflect the reality, a gratuitous contract arises. In this case, there will be a hidden donation. In which 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 maintenance contract made by the heir. There may be a request for equalisation. By the heirs with reserved share for the assets transferred to the maintenance debtor.
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