Executed while alive but effective upon death

Donations from one living person to another is generally known as donations inter vivos. But there are donations between the living which are not considered donations inter vivos because they are made in contemplation of death. These are known as donations mortis causa. This case of Concha explains the difference between the two and sets forth the requisites for their effectiveness.

Concha was a wealthy spinster with vast landholdings in the Visayas. While still alive she executed four deeds of donations in favor of her relatives particularly the following: (1) her brother Narciso to whom she donated a parcel of land located in an island containing an area of 80,000 square meters;

(2) her sister Ester to whom she gave two parcels of land located in different islands with areas of 307sq.m. and 50,232 sq.m.; and (3) another sister Mila to whom she donated another portion of the island property with an area of 80,000 sq.m.

The four deeds of donation contain similar provisions declaring that they were made "in consideration of the love and affection which the donor has for the donee" and that she "does hereby, by these presents, transfers, conveys by way of donation, unto the donee, the said properties, to become effective upon the death of the donor; provided however that in the event the donee should die before the donor, the donation shall be deemed automatically rescinded and of no further force and effect". In the acceptance clause, the donees also uniformly declared that they " hereby accept the foregoing donation mortis causa under the terms and conditions set forth therein and avail themselves of this occasion to express their profound gratitude for the kindness and generosity of the donor".

Four months after executing the deeds, Concha died. And so the contest for the inheritance among the heirs began. Concha’s other brothers and sisters, surviving nephews and nieces, and her mother, learned for the first time about the deeds of donation made by Concha. So they filed an action in the regional trial court for the annulment and/or declaration of nullity of the four deeds of donation. They alleged, among others, that the documents are void for failing to comply with the provisions of the Civil Code (Art.805 & 806) regarding formalities of wills and testaments considering that these are donations mortis causa.

Narciso, Ester and Mila however insisted that the donations were inter vivos as they were made by Concha in consideration of her love and affection for them, and there is nothing in the deeds which indicate that they were made in consideration of Concha’s death. The stipulation on the rescission or revocation of the deeds if they die ahead is resolutory condition ( condition subsequent) that confirms the nature of the donation as inter vivos.

Were they correct?

No.

The donations made by Concha are donations mortis causa, or donations by reason of or in contemplation of death. In a donation mortis causa, the right of disposition is not transferred to the donee while the donor is alive. In determining whether a donation is one of mortis causa, the following characteristics should be taken into account: (1) it conveys no title to the donee before the death of the donor; or that the donor retains control and ownership of the property while alive; (2) before the donor’s death, the transfer should be revocable by him at will although revocability may be provided for indirectly by means of the reserved power in the donor to dispose of the properties conveyed;and (3) the donation is void if the donor should survive the donee.

In this case, the nature of the donation as mortis causa is confirmed by the fact that the donations do not contain clear provisions that intends to pass proprietary rights to Narciso, Ester and Mila prior to Concha’s death. The phrase to become effective upon the death of the donor admits of no other interpretation but that Concha did not intend to transfer the ownership of the properties to Narciso et al. during her lifetime. Narciso et al. themselves confirmed the donations as mortis causa in the acceptance clause of the donation. That the donations were made in consideration of the love and affection of the donor does not qualify the donation as inter vivos because transfers mortis causa may also be made for the same reason.

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. This is exactly what Concha provided for in her donations. If she really intended that the donations should take effect during her lifetime and that ownership of the properties donated be transferred to the donees or independently of, and not by reason of her death, she would not have expressed such proviso in the subject deeds.

Considering that the disputed donations are donations moris causa, the same partake of the nature of testamentary provisions and as such must be executed in accordance with the requisite solemnities of wills and testaments particularly the attestation clause to be signed by three or more credible witnesses in the presence of the testator and of one another. The deeds in question, although acknowledged before a notary public, were not executed in the manner provided by law.

So all the other heirs of Concha are hereditary co-owners of the properties subject of the donation (Maglasang et.al. vs. Heirs of Cabatingan et.al. G.R. 131953, June 5, 2002)