Dear PAO,
A year after my mother passed away in 2022, my siblings and I found out that she executed a typewritten private instrument, donating one of her farm lots to her friend. The document stated that, in consideration of their true and long friendship, my mother decided to transfer and convey the said farm lot to her friend by way of donation to take effect upon her death. Furthermore, it was also stated that if her donee-friend predeceased her, the donation would be deemed rescinded and have no force and effect. We also learned that her friend had been occupying the farm lot since my mother became terminally ill. Since her death, I have sent several demand letters to this person for the reconveyance of the said lot to us because I believe that the donation is invalid. The typewritten private instrument was not notarized. However, the person refused to comply with my demands. Was the donation valid?
Don
Dear Don,
The donation is void. Article 728 of the New Civil Code provides that: “Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession.”
In the case of Ganuelas v. Hon. Cawed et al., GR 123968, April 24, 2003, the Supreme Court held through Associate Justice Conchita Carpio-Morales:
“Donation inter vivos differs from donation mortis causa in that in the former; the act is immediately operative even if the actual execution may be deferred until the death of the donor, while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-testator.”
Citing the case of Alejandro v. Geraldez, GR L-33849, Aug. 18, 1977, the Supreme Court said:
“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.”
The Supreme Court further clarified in the above-cited case of Ganuelas that:
“To become effective upon the death of the donor” admits of no other interpretation but that donor intended to transfer the ownership of the properties to the donee 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the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no further force and effect shows that the donation is a postmortem disposition.”
In your case, it is evident that the transfer of the subject property will only take effect after your mother’s death and that the donation will have no effect if her supposed donee-friend dies ahead of your mother. Consequently, the nature of the donation is a donation mortis causa, which requires the formalities of a will under Article 806 of the New Civil Code to make the disposal effective.
Article 806 of the New Civil Code provides: “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.”
Considering that the subject deed was made in a typewritten private instrument that was not notarized and, therefore, not compliant with the formalities of a will, the donation is void and produces no effect.
We hope that we were able to answer your queries. 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 protected]
