In the form of the contract on lifetime support the recipient of support takes the obligation to transfer his ownership of precisely specified things (most often, ownership of real estate) or any other rights to the support provider, and the support provider undertakes to, support him and to take care of him for the rest of his life and to bury him after his death.
Only things or rights existing and in the ownership of the support recipient at the time of the conclusion of the contract can be the object of this agreement, while this contract for the provider of support is aleatory, because at the time of conclusion, he does not know the exact scope of his future obligations.
The contract must be concluded in the form of a notarized (solemnized) document. During the confirmation (solemnization) of the contract, the public notary is obliged to warn the contracting parties that the property which is object of the contract does not enter into the inheritance of the recipient of lifetime support and that it cannot be used to settle his heirs, which is noted in the confirmation clause.
In the normal course of things, the support provider becomes the owner of the real estate at the time of the death of the recipient, and this property will not be the subject of probate proceedings after the deceased.
However, if at the time of the testator’s death he does not posses the property rights on the real estate in question, the provider remains without compensation (aleatory nature of the contract on the part of the supportance provider).
In the specific example that we are considering here, during the lifetime of the maintenance recipient, his right to property on the real estate was terminated due to expropriation – the real estate became public property by law.
The contract on lifetime support is neither terminated nor annexed during the lifetime of the recipient.
After his death, the amount of compensation for the expropriated real estate was deposited into his account and his legal heirs claimed inheritance rights to it.
However, the Supreme Court of Cassation ruled in favor of the support- provider and awarded him the right to full compensation for the expropriated real estate.
It is an interesting legal consideration how this came to be. Namely, the Law on inheritance of Serbia stipulates that the recipient can dispose of only the things and rights existing at the time of disposal. At the time of disposal, the recipient did not even know that the expropriation would occur, nor that he would exercise the right to monetary compensation on that basis.
Excerpt from the explanation of the judgment of the Supreme Court of Cassation, Rev 5956/2023 of 12.4.2023.
” With the expropriation of immovable property, the obligation of the support- recipient to transfer the right of ownership of the immovable property to the support- provider after his death ended. According to Article 354, paragraph 1, the ZOO, the obligation ends when its fulfillment becomes impossible due to circumstances for which the debtor is not responsible. In this case, that’s exactly what happened, because the expropriation is done in the public interest and independently of the will of the owner. However, the provision of Article 356 of that law stipulates that the debtor of a certain thing, who is released from his obligation due to the impossibility of fulfillment, is obliged to cede to the creditor the right he would have had against a third party due to the resulting impossibility.”
It is interesting that the testator, although he was obliged by law to cede the right to compensation for the expropriated immovable property to the provider of support (in the so-called formal form of solemnization of the written annex to the contract before a public notary), he did not do so. However, it is his obligation that arose before the moment of delation (death), and all the obligations that the testator assumed before death will pass by force of law to his heirs, who must recognize this right to the provider of support instead of the deceased recipient.
Disclaimer: This text is written for informational purposes only as well as to give general information and understanding of the law, not to provide specific legal advice. For any additional information feel free to contact us.