Can donation of my pieces of property be made to take effect after my death?
At age 65, I am still single and childless. My parents are both dead. I am planning to make the donation to my friend’s children.
According to the New Civil Code of the Philippines, donations that are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the law on succession (Article 728, Ibid.)
A donation that is to take effect after the death of the donor is denominated as donation mortis causa. The Supreme Court in the case of Gonzalo Villanueva vs. Spouses Froilan and Leonila Branoco (G.R. No. 172804, January 24, 2011), enumerated the characteristics of a donation mortis causa in this wise:
“We examine the juridical nature of the deed – whether it passed title to Rodriguez upon its execution or is effective only upon Rodrigo’s death – using principles distilled from relevant jurisprudence. Post-mortem dispositions typically –
(1) Convey 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;
(2) That before the [donor’s] 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;
(3) That the transfer should be void if the transferor should survive the transferee.http://www.lawphil.net/judjuris/juri2011/jan2011/gr_172804_2011.html – fnt10
 [T]he specification in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter vivos, rather than a disposition mortis causa[;]
 That the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is “to take effect at the death of the donor” are not controlling criteria; such statements are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor[;] [and]
(6) That in case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed.”
Clearly, one can make a donation to take effect after his/her death. The deed, however, has to conform with the formalities prescribed by law for the validity of wills, otherwise the same is void and produces no legal effect.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
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