Donation Deed Inter Mortis Jennifer Effect Causa Donor

V.

Josefa executed a deed of donation covering a one-hectare rice land in favor of her daughter, Jennifer. The deed specifically provides that:  "For and in consideration of the love and service Jennifer has shown and given to me, I hereby freely, voluntarily and irrevocably donate to her my one-hectare rice land covered by TCT No. 11550, located in San Fernando, Pampanga. This donation shall take effect upon my death. "

The deed also contained Jennifer's signed acceptance, and an attached notarized declaration by Josefa and Jennifer that the land will remain in Josefa's possession and cannot be alienated, encumbered, sold or disposed of while Jose fa is still alive.

Advise Jennifer on whether the deed is a donation inter vivos or mortis causa and explain the reasons supporting your advice. (8%)

SUGGESTED ANSWER:

The donation is a donation inter vivos.

When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the  donor's death, this shall be a donation inter vivos. (Art. 729 Civil Code).

The Civil Code favors inter vivos transmission.  Moreover, mortis causa donations should follow the formalities of a will (Art. 728 Civil Code).  Here, there is no showing that such formalities were followed.  Thus, it is favorable to Jennifer that the deed is a donation inter vivos.

Furthermore, what is most significant in determining the type of donation is the absence of stipulation that the donor could revoke the donation;  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 the essence of the act, to the extent that a testator cannot lawfully waive or restrict his right of revocation.  The provisions of the deed of donation which state that the same will only take effect upon the death of the donor and that there is a prohibition to alienate, encumber, dispose, or sell the same should be harmonized with its express irrevocability. (Austria-Magat v. CA, GR No. 106755, February 1, 2002).

ALTERNATIVE ANSWER:

The donation is a donation mortis causa.

The deed clearly states that the donation shall take effect upon the death of the donor, Josefa.  The donor, moreover, retained ownership of the subject property as it was declared that the property cannot be alienated, encumbered, sold or disposed of while the donor is still alive.

As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been complied with under Article 728 of the Civil Code; otherwise, the donation is void and would produce no effect.  (The National Treasurer of the Philippines v. Vda. de Meimban, GR No. L-61023, August 22, 1984)