GIVE AN APARTMENT FOR PEACEFUL AGE: Crown epidemic increases uncertainty among the elderly when it comes to inheriting property

The number of concluded contracts on lifelong support before notaries has been growing lately, especially since the beginning of the corona pandemic, says Sava Dedajić, a member of the Executive Board of the Public Notary Chamber of Serbia. However, no one knows how many such contracts are concluded annually, because there is no special register, just as it is not known what percentage of them are terminated or annulled.

– Probably the pandemic contributed to the increase, because people feel uncertainty and reach for this contract in order to solve the issue of their property for life. It is an option for them to leave a legacy to the one who really supports them and helps them – Dedajić explains.

According to him, the advantage is that he guarantees with considerable certainty to the one who has some property that he can give it to the one who really cares for him, whether it is a child, another relative or even a non-relative who looks after him:

– It is important for a person that his heir, when he dies, becomes someone who, we can say, deserved it. Thus, a person provides himself with care and nursing for life, given his inability, old age and illness, not to be alone in such life situations. When the property is left to the person who supported it, even the necessary heirs cannot overturn that contract and ask for the necessary part.

However, such “papers” usually disrupt family relationships, so those who are supposed to inherit real estate or movables are left without an inheritance. That is why they often try to refute those contracts in a court dispute. The most common arguments are that the recipient of alimony was not capable of reasoning, that he could not conclude such a contract, that the contracts were fictitious, that there was no real alimony, but the motive was only to exclude the heirs …

– It is difficult to refute the contract on lifelong support if it is duly certified, earlier before the court, and now before the notary public – claims Dedajić. – And while the court was certifying these contracts, it was not an ordinary signature verification, but the judge had to read the contract to both parties and put a clause that he read and taught the parties about the consequences. Since the notaries took over these responsibilities, the notary has followed the same procedure: read the contract, instructed the parties on the consequences, determined legal capacity and in many cases sought the findings of a neuropsychiatric expert. That is why these contracts are difficult to break. In addition, the law itself excludes the rights of heirs and necessary heirs to that property.

Lawyer Petar Stojkov says that, although difficult to destroy, this contract is not impossible to overturn, either for formal reasons (eg if it is not well established what the subject of the contract is), or for formal reasons (if the recipient claims that the provider has not fulfilled obligations, such as buying clothes, shoes, food, or seeing a doctor and making company).

– It also happens that the donor fulfills all that, but then does not bury the recipient according to local customs and does not hold, say, a six-month or annual commemoration, and that is stated as a contractual obligation, so relatives sue and break the contract – says Stojkov. – It also happens that they bring it down if it does not contain an element of aleatoryness (uncertainty), that is, if it is certain that the recipient will die soon due to a serious illness, so the goal of the contract is not fulfilled: to give him care and attention.

Therefore, in such situations, when the recipients of support are in advanced stages of the disease, and they want to leave property to specific persons in exchange for care, lawyer Nenad Vasić recommends other types of contracts, such as the gift and the like, but with a clause of mandatory care until death. Vasic gives a few more tips to make the contracts harder to rebut. For example, if the recipient and the donor do not have the money to pay for the expertise, they will also use the findings of the doctor from the Health Center, which states that the recipient at the time of signing is capable of concluding legal transactions and well oriented.

– In order to avoid misunderstandings about whether the conditions of the contract are fulfilled, it is not bad for the recipient to sign a statement from time to time confirming this. It is also good to include as many specific obligations in the contract as possible. Let’s say the donor commits to providing one cooked meal a day. I had a situation where the recipient complained because the donor only bought him bread and milk, never cooked anything. It would also be good for the contracting parties to agree, when the donor can no longer take care of the recipient due to his extremely poor health, under which conditions he will be placed in a home. Eg. that the room should not have more than two or three beds. This protects recipients from being in unconditional homes. It is good to specify movable things, and not only real estate, which belongs to the property that remains with the provider of support – says Vasić.

Illustration by Toša Borković

Since we do not have a register of these contracts, it is not bad to insist that the conclusion of contracts be recorded as a record of real estate in the land register. When that is not the case, it happens, Stojkov and Vasić confirm to us, that the recipients conclude two or three such contracts, so when they die, a dispute arises between the providers of support over the property.

The contract on lifelong support can also be terminated if the damaged heir, usually another child, manages to prove that the intention of the contractor was to circumvent the law and to leave it without the necessary part.

INDEMNITY

SOMETIMES the recipients of maintenance want to terminate the contract for various reasons, so they refuse to contact the donor for months, in order to eventually meet the conditions to initiate the termination before the court. As Vasić says, in 95% of cases, the court terminates such contracts, and the donors then claim damages.