Will or Maintenance Contract?

“I am an elderly, single woman with no close relatives. I would like my apartment to go to a reliable neighbor after my death, who, in exchange, would care for me should I need assistance. Should I write a will, or would it be more advisable to enter into a maintenance contract?” — asks our reader, L.I.

Both legal arrangements are suitable for settling the fate of property, as the transfer of ownership of the property takes place in both cases: with a will, only after the testator’s death, and with a maintenance contract, upon signing the document.

In practice, a will can also work if it is made in favor of a reliable person who agrees to take on maintenance obligations, and there are no direct descendants, ascendants, or surviving spouses entitled by law to a reserved share of the inheritance. A will is a simple, quick, and inexpensive solution, but it does not provide sufficient security for the fulfillment of maintenance obligations, as it cannot include or establish such obligations. The only guarantee is the honesty and goodwill of the beneficiary; in the event of refusal to provide care, the only solution would be to revoke the will and create a new one or sign a maintenance contract, provided the testator’s health and capacity allow it.

The maintenance contract is the most appropriate legal instrument, providing adequate guarantees for both parties when maintenance is given in exchange for compensation (the transfer of property). The obligor agrees to provide care and support according to the circumstances and needs of the beneficiary. This includes ensuring the beneficiary’s housing, providing food and clothing, caregiving, nursing, and medical treatment if they become ill, and arranging a proper burial upon their death. This contract, therefore, implies a degree of personal attachment and a trust-based relationship.

It is advisable, in addition to transferring ownership of the apartment, to retain a lifelong usufruct in the beneficiary’s favor, recorded in the land register to avoid potential disputes or misuse.

Such contracts are typically established for an indefinite period, lasting until the beneficiary’s death, giving them what is known as a “chance” characteristic, as it is impossible to determine the proportionality of service and compensation at the time of signing.

Given this “chance” aspect, these contracts cannot later be contested solely on the grounds that the service provided by the obligor is disproportionately low or high relative to the value of the compensation given by the beneficiary.

Formally, the contract must be executed as a notarized document, making it significantly more expensive than a will and can only be dissolved through legal proceedings if the obligor fails to meet or inadequately fulfills their maintenance obligations.