December 8, 2023


Interior Of The Road

Deed of Donation, Last Will and Testament

One form of a legal instrument to effect transfer of property from one person to another which could be intended to minimize, if not altogether evade payment of taxes, is the Deed of Donation Inter-Vivos. It is commonly applied as an immediate manner of property transfer whereby the owner simply doles out his property to any legal personality, in many cases a son or daughter or any close relative, affiliate or business associate, without any form of monetary consideration, hence not subject to any form of sales or income tax.

While in principle, a deed of donation is similar in effect to a testate will, i.e., giving out pro-bono any rightfully owned property to anybody, the basic distinction is in the timing of the instruments. A property owner’s last will and testament takes effect and becomes enforceable only upon the testator’s demise. A deed of donation, on the other hand, can be made to take effect immediately, or at any period of time that the donor finds relevant.

Property transfer tax payable to the government in a deed of donation is minimal compared to how much could be assessed on a last will and testament, which could include, aside from the basic transfer tax, inheritance tax and whatever unsettled liabilities of the testator which should finally be charged against his estate.

While both instruments could be executed unilaterally, a deed of donation could become more legally irreversible and could no longer be rescinded when the consent and acceptance of the donee is made explicit in the contract. Whereas anybody’s last will and testament is still subject to revision or modification in the lifetime of the testator as it becomes executory only after his demise.

In any case, legal jurisprudence is settled in the principle that nothing is more final and executory than the last will and final settlement instructions of a dying man, therefore all the more strengthening the legal bond that seals the last will and testament.