Post-mortem disposition

A donation may either be inter vivos or mortis causa. In inter vivos, the donation is immediately operative and full ownership of the property passes to the donee during the donor’s lifetime not by reason of his death, even if the actual execution may be deferred until his death. In mortis causa, nothing is conveyed to or acquired by the donee until the death of the donor. Donation mortis causa must have the formalities of a last will and testament. Donation inter vivos should only be in writing and accepted by the donee also in writing except when the property donated is a real estate, in which case the donation and acceptance must be in a public instrument. Said donation can be revoked only on grounds provided by law.

The distinction between the two kinds of donation is therefore vital in determining the formalities required and in finding out when it can be revoked. Such as in this case of Lina.

Lina was one of the nieces of Doña Tina, a rich widow without any child. On April 11, 1958, Doña Tina executed in favor of Lina a Deed of Donation of seven parcels of land "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 donation was "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death of the donor, but in the event that the donee should die before the donor, the present donation shall be deemed rescinded and of no further force and effect". The deed was in a public instrument and contained an attestation clause as in the formalities of a will. But the acknowledgment before the notary public was signed only by the donor and the donee.

On June 10,1967 Doña Tina executed a document denominated as "Revocation of Donation" purporting to set aside the deed of donation. Then more than a month later, or on August 18, 1967 she died, survived only by Lina and seven other nephews and nieces. Since her death, Lina and the other nephews and nieces had been sharing the produce of the donated properties.

But in 1982 or twenty four years after the execution of the deed of donation, Lina secured the corresponding tax declarations, in her name, of the donated properties. And since then she refused to share the produce of the properties with the other nephews and nieces despite the latters’ repeated demands.

So on May 26, 1986, five nieces led by Fely filed a complaint against Lina. They also included in the complaint, the two other nephews who refused to join them. They alleged that the Deed of 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. So they prayed that Lina return to them as intestate heirs possession of said properties, cancellation of the tax declaration and accounting of the fruits of the properties since 1982.

Lina however contended that the donation contained in the deed was inter vivos as the main consideration for its execution was Dona Tina’s affection for her. She claimed that the provision on the effectivity of the donation- after the donor’s death- simply meant that the absolute ownership would pertain to her on Doña Tina’s death. Since the donation was inter vivos, Lina said that its revocation was not valid as it was not based on the grounds provided in Articles 760,764,and 765 of the Civil Code.

Was Lina correct?

No.

There is nothing in the deed of donation which indicates that any right title or interest in the donated properties was to be transferred to Lina prior to the death of Doña Tina. The phrase "to become effective upon the death of the donor" admits of no other interpretation but that Doña Tina intended to transfer 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 (Lina) should die before the donor (Doña Tina), the donation shall be deemed rescinded and of no further force and effect, shows that the donation is a post mortem disposition. Finally, the deed also contains an attestation clause expressly confirming the donation as mortis causa.

That the donation was prompted by the affection of Doña Tina for Lina 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.

So the deed of donation is a post mortem disposition. It takes effect only upon Doña Tina’s death. But as donation mortis causa, it is defective since the acknowledgment before the notary public was signed only by the donor and the donee. Besides, being a donation mortis causa, it is revocable at will during the lifetime of the donor as was done by Doña Tina in this case, unlike donation inter vivos where such revocation must only be on grounds provided by the Civil Code. The deed of donation in this case is therefore null and void because the required formalities are defective and it has been validly revoked. (Ganuelas et al. vs.Cawed et.al.G.R.123968 April 24, 2003)