Deed of Donation

donation 2p

Here’s an article from correspondent, Ma. Soledad Deriquito-Mawis re Donation of Property, take note the newly enacted TRAIN Law has a direct effect on Donations of property, will blog about that another time : 


Tina has a generous heart.

Tina, through a deed of donation, gave seven parcels of land to her favorite niece, Lina. Pertinent provision of the deed of donation reads, quoted verbatim:

xxx           xxx          xxx.

That, for and in consideration of the love and affection which the DONOR has for the DONEE, and of the faithful services the latter has rendered in the past to the former, the said DONOR does by these presents transfer and convey, by way of DONATION, unto the DONEE the property above, described, to become effective upon the death of the DONOR; but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and of no further force and effect.

xxx           xxx           xxx.

Years later, the relationship between the aunt and niece soured. Consequently, Tina revoked the donation through a document denominated as Revocation of Donation. More than a month later, Tina died without issue and any surviving ascendants and siblings.

After Tina’s death, Lina had been sharing the produce of the donated properties with private Dia, Fely, Cora and Roma, nieces of Tina.

Unknown to her cousins, Lina obtained the corresponding tax declarations for the seven parcels of land that were once donated to her by deceased aunt. Since then, she refused to give her cousins any share in the produce of the properties despite repeated demands.

Dia and company sued Lina. They argued that the Deed of Donation executed by Tina in favor of Lina was void for lack of acknowledgment by the attesting witnesses thereto before notary public, and the donation was a disposition mortis causa which failed to comply with the provisions of the Civil Code regarding formalities of wills and testaments, hence, it was void.

They also prayed that judgment be rendered ordering Lina to return to them as intestate heirs the possession and ownership of the properties.

They likewise prayed for the cancellation of tax declarations secured in the name of Lina, the partition of the properties among intestate heirs of Tina, and rendering by Lina of an accounting of all the fruits of the properties and for her to return or pay the value of their shares.

Lina, on the other hand, countered that the donation in favor of her favor was inter vivos as contemplated under Article 729 of the Civil Code,  hence, the deed did not have to comply with the requirements for the execution of a valid will; the Revocation of Donation is null and void as the ground mentioned therein is not among those provided by law to be the basis thereof; and at any rate, the revocation could only be legally enforced upon filing of the appropriate complaint in court within the prescriptive period provided by law, which period had, at the time the complaint was filed, already lapsed.

Q: What is inter vivos?

A: Inter vivos is a Latin term meaning “among the living.” It usually refers to the transfer of property by agreement between living persons and not by a gift through a will. An inter vivos gift is thus a gift made while someone is alive.

Q: What is mortis causa?

A: It is a Latin term meaning “in contemplation of approaching death.” A gift causa mortis is a gift given by a party who feels certain that death is imminent.

The phrase is sometimes used in reference to a deathbed gift since the gift is giving in expectation of approaching death. A gift causa mortis is effective only if it is made in contemplation of death due to a known condition and the donor actually dies as a result of that condition.

Q: What is the difference between donation inter vivos and donation mortis causa?

A: In Donation inter vivos, the act is immediately operative even if the actual execution may be deferred until the death of the donor. In donation mortis causa, nothing is conveyed to or acquired by the donee until the death of the donor-testator.

Thus, if the donation is made in contemplation of the donor’s death, meaning that the full or naked ownership of the donated properties will pass to the donee only because of the donor’s death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament.

But if the donation takes effect during the donor’s lifetime or independently of the donor’s death, meaning that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donor’s lifetime, not by reason of his death but because of the deed of donation, then the donation is inter vivos.

The distinguishing characteristics of a donation mortis causa are the following:

It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain the ownership (full or naked) and the control of the property while alive;

That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

That the transfer should be void if the transferor should survive the transferee.

Q: Why is the distinction of utmost importance?

A: The distinction between a transfer inter vivos and mortis causa is important as the validity or revocation of the donation depends upon its nature.

If the donation is inter vivos, it must be executed and accepted with the formalities prescribed by Articles 748 and 749 of the Civil Code, except when it is onerous in which case the rules on contracts will apply.

If it is mortis causa, the donation must be in the form of a will, with all the formalities for the validity of wills, otherwise it is void and cannot transfer ownership.

Q: Is Tina’s donation in the nature of donation inter vivos or mortis causa?

A: It is a donation mortis causa. There is nothing therein which indicates that any right, title or interest in the donated properties was to be transferred to Lina prior to the death of Tina.

The phrase “to become effective upon the death of the DONOR” admits of no other interpretation but that Tina intended to transfer the ownership of the properties to Lina on her death, not during her lifetime.

More importantly, the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no further force and effect shows that the donation is a postmortem disposition.

One of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee.

Moreover, the deed Tina executed contains an attestation clause expressly confirming the donation as mortis causa:

SIGNED by the above-named donor, Celestina Ganuelas, at the foot of this deed of donation mortis causa, consisting of two pages and on the left margin of each and every page thereof in the joint presence of all of us who at her request and in her presence and that of each other have in like manner subscribed our names as witnesses.

Q: Will considerations of love and affection make a donation inter vivos?

A: To classify the donation as inter vivos simply because it is founded on considerations of love and affection is erroneous.

That the donation was prompted by the affection of the donor for the donee and the services rendered by the latter is of no particular significance in determining whether the deed constitutes a transfer inter vivos or not, because a legacy may have an identical motivation. In other words, love and affection may also underline transfers mortis causa.

Q: Is the deed of donation executed by Lina void or valid?

A: It is void. As the subject deed then is in the nature of a mortis causa disposition, the formalities of a will under Article 728 of the Civil Code should have been complied with, failing which the donation is void and produces no effect.

In fact, the attesting witnesses failed to acknowledge the deed before the notary public, thus violating Article 806 of the Civil Code which provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

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Robert G. Sarmiento Properties
Professional Affiliation :
Philippine Association of Real Estate Boards
Member, City of Taguig Real Estate Board 2016 – 2018
Real Estate Broker’s Association of the Philippines 2000 – 2015
President, Greenhills Chapter 2008, 2009
Philippine Association of Real Estate Boards
San Juan Mandaluyong Chapter 1998 -1999
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