Dear PAO,
I have properties which I intend to donate. Can you please enlighten me between donations that take effect during my lifetime and donations that take effect after my death?
Abi

Dear Abi,
Please be informed of Ganuelas vs. Cawed, GR 1233968, April 24, 2003, wherein the Supreme Court, through Associate Justice Conchita Carpio-Morales, distinguished donation inter vivos from donation mortis causa in this wise:

“xxx The following ruling of this Court in Alejandro v. Geraldez is illuminating:
“If the donation is made in contemplation of the donor’s death, meaning that the full or naked ownership of the donated properties will pass to the donee only because of the donor’s death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament.

“But if the donation takes effect during the donor’s lifetime or independently of the donor’s death, meaning that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donor’s lifetime, not by reason of his death but because of the deed of donation, then the donation is inter vivos.
“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.
“The distinguishing characteristics of a donation mortis causa are the following:
“1. 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;

“2. 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;

“3. That the transfer should be void if the transferor should survive the transferee.”
Essentially, donations mortis causa are testamentary dispositions. Thus, the formalities of a will are required to be observed, and it can be revoked anytime and for any reason while the donor is still alive. On the other hand, donations inter vivos must follow the formalities of donations and cannot be revoked except for grounds provided by law. Moreover, it should be noted that in cases of impairment of the legitime, donations mortis causa are reduced ahead of donations inter vivos, the latter being preferred.
We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]