I never got the chance to get married but I do have a child who was born out of wedlock. He has been a very good son and I could not be more proud of him. Now, I am considering donating my small apartment under his name, although I want the complete transfer to take effect upon my death. I just want him to be able to get the rent out of the lease in that property so that he can have some source of income. You see, he did not pursue his career because he opted to take care of me. That is why I want to somehow reward him for his sacrifices. Do you think this is possible? He is my son after all. Please advice.
Our laws do not limit the act of donation among family members alone. Neither is it required to be made only between strangers. It is worthy to note that the owner of a property has the right to enjoy and dispose of a thing in any manner he wants and without other limitations than those established by law (Article 428, New Civil Code of the Philippines). Correspondingly, the owner of a property may donate the same to any person he or she desires, whether that person is his family member or not. Though our laws require that the parties be eligible for such donation, that is, the donor is capacitated to enter into a contract and can dispose his or her property, and the donee is not lawfully disqualified to accept the donation. (Articles 735 and 738, id)
Taking all of these into consideration, we believe that you may donate your small apartment in favor of your son, if that is your sincere desire so as to recompense him for what you consider as his sacrifices for you. After all, donation is an act of pure liberality that is left to the will of the donor.
It is likewise possible for you to execute the deed of donation now even if the delivery of the said property will only take effect upon your death and that the only benefits or advantages which are extended to your son at the moment will go as far as the rent coming from the lease of such property. While it is true that donations which are to take effect upon the death of the donor are considered testamentary transfers and thus governed by the law on succession, we cannot disregard an exception to such a rule. It is expressly provided for under Article 729 of the New Civil Code: “When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor’s death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise.”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com