Given dead or alive

Julian executed a two-page document entitled “Donacion Mortis Causa Kon Hatag Nga Pagabalihon Sa Akong Kamatayon.”

The document stated that Julian donated to his grandson, Lambert, three parcels of land. The first page contains the disposition, signature and thumb mark of the donor, the signature of the donee, the signatures and the three witnesses’ attestation clause, which was continued on the second page, also signed by the three attesting witness and also bearing the thumbmark of Julian, the donor.

In the attestation clause, it was stated that Julian signed the instrument in the presence of the three attesting witnesses and of Lambert, and that the witnesses witnessed and signed the instrument in the presence of Julian, Lambert, and of one another.

The instrument was duly notarized by a notary public with the notarial acknowledgment appearing on the second page, as well as the signatures of the three instrumental witnesses.

In essence, the instrument states that Julian’s donation was made in consideration of his love, affection and gratitude for his grandson, Lambert, who has been taking care of him.

Seven days later, God called Julian to His side. Years later, Lambert also died and was succeeded by his children. A new title was issued in favor of Lambert’s children.

Aggrieved that Julian left all his properties to just one grandchild, the brothers and sisters of Lambert, filed a Complaint for Declaration of Nullity of Dubious and Inofficious Deed of Donation Mortis Causa, Partition of Properties and Damages. They claimed that they are the children of Lina, who is the daughter of Julian and Epi.

Lambert’s siblings assert that the donation executed by Julian is a donation mortis causa, not a donation inter vivos since the donation is to be effective only upon the death of Julian and the transfer of ownership of the three parcels of land will pass to Lambert only upon the death of Julian. They also argued that the donation is void for failure to comply with the requirements for the validity of its execution particularly on the attestation clause and that it is inofficious since it prejudiced their legitime.

Meanwhile, the children of Lambert argued that Julian’s instrument was a donation inter vivos because it does not impose any condition that the title or ownership to the three parcels of land shall only be transferred after the death of the donor.

There is nothing in the instrument which states that the donor intends to retain ownership of the three parcels of land while still alive; neither did the donor impose as condition that the transfer should be revocable before the donor’s death; and that the instrument does not contain a provision that the transfer shall be void if the donor should survive the donee.

Q: What is a donation mortis causa? What is a donation inter vivos?

A: Donation inter vivos differs from donation mortis causa in that, in donation inter vivos, the donation takes effect during the donor’s lifetime or independently of the donor’s death and must be executed and accepted with the formalities prescribed by Articles 748 and 749 of the Civil Code.

However, if the donation is made in contemplation of the donor’s death, meaning that full or naked ownership will pass to the donee only upon the donor’s death, then, it is a donation mortis causa, which should be embodied in a last will and testament.

Q: Was the Donacion Mortis Causa Kon Hatag nga Pagabalhinon sa akong Kamatayon a donation mortis causa or a donation inter vivos?

A: It is a donation mortis causa. In a donation mortis causa, the right of disposition was not transferred to the donee while the donor is still alive. The phrase in the title “Kon Hatag Nga Pagabalihon Sa Akong Kamatayon” literally means “Donation or gift that will be transferred upon my death.”

This only means that Julian intended to transfer the ownership of the subject properties to Lambert upon his death and not during his lifetime. Moreover, the donation has no acceptance clause.

Q: Considering that the subject instrument is a donation mortis causa, was the instrument executed in accordance with the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code?

A: Yes, the donation mortis causa has substantially complied with the formalities required by law for the validity of a will.

Under Articles 805 and 806 of the Civil Code, the requirements for the validity of a will are as follows: (1) subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses; (2) attested and subscribed by at least three credible witnesses in the presence of the testator and of one another; (3) the testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses; (4) the witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another; (5) all pages numbered correlatively in letters on the upper part of each page; (6) attestation clause, stating that (a) the number of pages of the will, (b) that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses, and (c) that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another; and (7) acknowledgment before a notary public.

Although the instrument in question reveals that the attestation clause indeed failed to state the number of pages upon which the will is written, however, the number of pages was stated in one portion of the donation mortis causa, particularly the notarial acknowledgment wherein it was specified that the instrument is composed of two pages, the Acknowledgment included.

Q: Was the donation inofficious?

A: Yes, The donation is inofficious because it impaired that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.

When Julian died, he was survived by his grandchildren by his daughter, Lamberto and his siblings. Consequently, the right to the legitime is transmitted to the representatives of the compulsory heir, Lina. Hence, Lina’s right to the legitime of Julian’s properties is transmitted to her children who shall inherit from Julian, by right of representation.

Consequently, the Donation Mortis Causa executed by Julian in favor of Lambert should be reduced insofar as the one-half portion of the three parcels of land, which prejudiced the legitime of Julian’s legitimate descendants.

The said one-half portion shall pertain to the eight children of Lina, excluding Mar who has died without any issue. The donation of the one-half of the three parcels of land made by Julian in favor of Lambert remains a valid and lawful disposition of Julian’s free portion of his property which he can freely dispose of.

However, since Lambert is also a compulsory heir entitled to one-eighth of the one-half portion which represents the legitime of the compulsory heirs, the deed of donation mortis causa shall be reduced only insofar as the seven-eighths of the one-half of the three parcels of land previously owned by Julian and the children of Lambert are hereby ordered to reconvey the said portion to petitioners.

Source: Heirs of Estella vs Estella, et. al, G.R. No. 245469, December 09, 2020