Gift dependent on death | Inquirer Business
Property rules

Gift dependent on death

In 1958, Tina executed a Deed of Donation of Real Property covering several parcels of land in favor of her niece, Lina. More than a decade after, Tina executed a Revocation of Donation setting aside the deed of donation. A month later, Tina died without issue and any surviving ascendants and siblings.

After Tina’s death, Lina shared the produce of the donated properties with the nieces of Tina.


Twenty-four years after the execution of the Deed of Donation, Lina secured the corresponding tax declarations, in her name over the donated properties, and since then, she refused to give Tina’s nieces share in the produce of the properties despite repeated demands.

The nieces then filed a complaint against Lina. They alleged that the Deed of Donation executed by Tina in favor of Lina is void on the ground that since the donation was a disposition mortis causa, which failed to comply with the provisions of the Civil Code regarding formalities of wills and testaments.


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

A: 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.

Q: Why is the distinction important?

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 the donation in this case mortis causa or inter vivos?

A: In the donation subject of the present case, 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 appearing in the Deed of Donation that the donation shall “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. 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. (Source: Ganuelas vs. Cawed, G.R. No. 123968, April 24, 2003)

The author is Dean of Lyceum of the Philippines University; Chairperson of the Philippine Association of Law Schools; and founder of Mawis Law Office



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