Ölünceye Kadar Bakma Sözleşmesi Kapsamında Bakım Alacaklısının Saklı Payı İhlal Kastı ile Yaptığı Sağlararası Kazandırmaların Tenkisi

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Date
2021-12-31
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İstanbul Hukuk Mecmuası
Abstract
A lifetime maintenance agreement is a reciprocal agreement. Therefore, the transfer of an estate or individual assets to a settlor made by a beneficiary is not subject to abatement and cannot be added to a decedent’s assets according to Article 565 of the Turkish Civil Code. However, sometimes, a lifetime maintenance agreement can accompany a donation agreement. The resulting agreement can then be defined as a mixed gift. In this context, only the gratuitous part of the agreement would be subject to abatement. The majority of cases related to abatement of the lifetime maintenance agreement relate to the alienation made by the beneficiary with the obvious intent of circumventingthe existing limitations on his or her testamentary freedom. There is an obvious intent of the beneficiary to violate the compulsory portion (the statutory entitlement) when he transfers an estate or individual assets when he is aware of the violation of the requirements for a compulsory portion for heirs with such a transfer. According to the Turkish Court of Cassation, for instance, the beneficiary intends to violate the compulsory portion (the statutory entitlement) if he is not in need of special care at the beginning of the contract period. Additionally, according to the Turkish Court of Cassation, the beneficiary also obviously intends to violate the compulsory portion (the statutory entitlement) if the beneficiary transfers all or most of his assets to the settlor. If there is an imbalance between the obligations of the beneficiary and the settlor, the Turkish Court of Cassation considers the beneficiary’s intent to violate the compulsory portion (the statutory entitlement). However, no single criterion, among those which have been found by the Turkish Court of Cassation to show intent, is sufficient in and of itself to show the intent of the beneficiary to violate the compulsory portion (the statutory entitlement). In order to determine the intent of the beneficiary to violate the compulsory portion (the statutory entitlement), the criteria found by the Turkish Court of Cassation must be supported by additional evidence. In order to avoid abatement, the beneficiary may transfer his estate or individual assets with a fictitious transaction. In this context, the party challenging the donation must prove that the donation agreement, hidden behind the lifetime maintenance agreement, represents the agreement of the parties to a fictitious transaction in addition to demonstrating the beneficiary’s intent to violate the compulsory portion (the statutory entitlement).
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