The art of giving

Leo and Guada executed a document entitled “Donation Mortis Causa” in favor of their two children, Siony and Emil, and their granddaughter, Jaya, daughter of their predeceased son, Zolo.

They donated their Manila house and lot in equal shares. The Deed of Donation Mortis Causa stated, among others, that:

The Donation Mortis Causa shall be irrevocable and shall be respected by the surviving spouse;

Jaya and Emil will continue to occupy the portions now occupied by them;

The deed shall not in any way affect any other distribution of other properties belonging to any of spouses whether testate or intestate and where ever situated;

That any one surviving spouse reserves the right, ownership, possession and administration of donated Manila property; and that

The Donation shall be operative and effective upon the death of the spouses.

The Deed had no attestation clause and was witnessed by only two persons. The named donees signified their acceptance of the donation on the face of the document.

Guada, the donor wife, died. A few months later, Leo, the donor husband, executed a deed of assignment of all of his rights and interests in the same property to their only daughter, Siony.

After the death of her grandfather, Jaya filed a petition for the probate of the Deed of Donation Mortis Causa before the Regional Trial Court of Manila. Her aunt, Siony, opposed the petition. Siony insists that Leo assigned all of his rights and interests in the property to her.

Q: What are the differences between a donation mortis causa and donation inter vivos?

A: A donation mortis causa has the following characteristics:

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 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; and

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

When the deed of donation provides that the donor will not dispose or take away the property donated (thus making the donation irrevocable), he in effect is making a donation inter vivos. He parts away with his naked title but maintains beneficial ownership while he lives.

It remains to be a donation inter vivos despite an express provision that the donor continues to be in possession and enjoyment of the donated property while he is alive.

What is most significant [in determining the type of donation] is the absence of stipulation that the donor could revoke the donations.

On the contrary, the deeds expressly declare them to be “irrevocable”, a quality absolutely incompatible with the idea of conveyances mortis causa where revocability is of the essence of the act, to the extent that a testator can not lawfully waive or restrict his right of revocation. (Austria-Magat vs. CA, G.R. No. 106755, February 1, 2002)

An inter vivos donation of the real property must be evidenced by a public document and should be accepted by the donee in the same deed of donation, or in a separate instrument.

In the latter case, the donor should be notified of the acceptance in an authentic form and that step should be noted in both instruments. On the other hand, a transfer mortis causa should be embodied in a last will and testament.

Strictly, speaking it is a legacy. If not embodied in a valid will, the donation is void. (Alejandro vs. Hon. Geraldez, G.R. No. L-33849 August 18, 1977.)

Q: Does the title of the Deed the spouses executed define the nature thereof?

A: The caption “Donation Mortis Causa” is not controlling. If a donation by its terms is inter vivos, this character is not altered by the fact that the donor styles it mortis causa. (Del Rosario vs. Ferrer, G.R. No. 187056, September 20, 2010)

Q: What is the nature of the “Donation Mortis Causa” that was executed by Leo and Guada?

A: Leo and Guada plainly said that it is “our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the surviving spouse.”

The intent to make the donation irrevocable becomes even clearer by the proviso that a surviving donor shall respect the irrevocability of the donation. Consequently, the donation was in reality a donation inter vivos.

While it is true that the donors reserved the “right, ownership, possession, and administration of the property” and made the donation operative upon their death, such reservation (reddendum) in the context of an irrevocable donation simply means that the donors parted with their naked title, maintaining only beneficial ownership of the donated property while they lived.

Notably, the three donees signed their acceptance of the donation, which acceptance the deed required.

Such acceptance clause indicates that the donation is inter vivos, since acceptance is a requirement only for such kind of donations. Donations mortis causa, being in the form of a will, need not be accepted by the donee during the donor’s lifetime.

Finally, in case of doubt, the conveyance should be deemed a donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed. (Del Rosario vs. Ferrer, G.R. No. 187056, September 20, 2010)

Q: What is the effect of the subsequent assignment made of Leo in favor of her daughter, Siony?

A: Given that the donation was irrevocable or one given inter vivos, Leo’s subsequent assignment of his rights and interests in the property to Siony should be regarded as void for, by then, he had no more rights to assign.

He could not give what he no longer had. Nemo dat quod non habet. (Del Rosario vs. Ferrer, G.R. No. 187056, September 20, 2010)

P.S. May the birth of our Lord Jesus bring us infinite love and wisdom.

Ma. Soledad Deriquito-Mawis is currently the Dean of College of Law, Lyceum of the Philippines University;   and President of Philippine Association of Law Schools