Validity of an Unnotarized Deed of Donation After the Donor’s Death
(Philippine legal perspective)
Quick takeaway: For real property, a deed of donation that was never notarized while the donor was alive is void and cannot be cured after the donor’s death. For movables, the rules are more forgiving, but key formalities must still have been completed during the donor’s lifetime. Below is the complete doctrinal landscape.
1. Framework of Philippine Donation Law
| Topic | Governing provisions | Essential idea |
|---|---|---|
| Capacity & objects | Civil Code arts. 725–727 | Donor must own and freely dispose of the thing; donee must not be incapacitated. |
| Form for movables | Art. 748 | - ≤ ₱5 000: oral with simultaneous delivery. - > ₱5 000: donation and acceptance must be in writing (notarization optional). |
| Form for immovables | Art. 749 | Donation and acceptance must be in a public instrument (i.e., notarized). Notification to donor is required if acceptance is in a separate deed. |
| Validity defects | Arts. 748 & 749, 1318 & 1390 | A donation lacking any required form is void and inexistent; it cannot be validated by ratification or by the passage of time. |
2. Why “Public Instrument” = Notarization
Under the Civil Code, a “public instrument” is an instrument acknowledged before a notary public or other authorized officer (see Art. 1358 and the Notarial Law).
- Purpose: safeguards authenticity, deters fraud, and enables registration.
- Effect: without notarization, the deed never attains the status of a public instrument, so the statutory requirement for donations of real property is unmet.
3. Acceptance Must Occur While the Donor Is Alive
3.1 Modes of Acceptance
- In the same deed – simplest and safest.
- In a separate deed – still needs notarization and the donor must receive authentic notice (usually by notarial notice or a written acceptance noted on the original).
3.2 Consequences of Late Acceptance
- If acceptance (or notice of it) occurs after the donor’s death, the donation is null because the meeting of the minds required by Art. 1319 never occurred.
4. What Happens When the Donor Dies With an Unnotarized Deed
4.1 If the property is real
- Void ab initio: Art. 749’s public‑instrument requirement is mandatory and cannot be “cured” post‑mortem.
- Registration is impossible; the Registry of Deeds will deny transfer.
- Estate inclusion: The property remains part of the donor’s estate and will be distributed under a will or intestacy.
4.2 If the property is a movable worth > ₱5 000
- Written form is necessary, but notarization is optional.
- An unnotarized yet signed deed + acceptance made during the donor’s lifetime remains valid.
- If acceptance or delivery happened only after death, donation fails.
4.3 Common misconceptions
| Myth | Legal reality |
|---|---|
| “Notarize it now and it becomes valid.” | Notarization cannot retroactively supply a missing formal requirement for a past juridical act. |
| “Heirs can ratify it.” | No. Void donations cannot be ratified (Art. 1390 last ¶). |
| “Possession equals ownership.” | Possession may raise presumptions but does not cure a void title. |
5. Relevant Jurisprudence
| Case | Gist |
|---|---|
| Heirs of Malate v. Gamboa (G.R. L‑1514, 1957) | Unnotarized deed of donation of land declared void; heirs recovered the property. |
| Cabardo v. CA (G.R. 98427, 1992) | Separate acceptance deed with late notification rendered donation void despite notarization. |
| Santos v. Heirs of Domingo Reyes (G.R. 188109, 5 Oct 2016) | Reiterated that acceptance must be during donor’s lifetime; failure is fatal. |
| Del Rosario v. Heirs of Del Rosario (G.R. 16075, 1961) | Explained distinction between donations inter vivos and mortis causa; formalities must match true nature. |
(Full case texts are available in the Supreme Court E‑Library.)
6. Effect on Taxation
| Tax | Scenario | Outcome |
|---|---|---|
| Donor’s tax | Valid donation inter vivos | Payable within 30 days of notarization; BIR requires notarized deed. |
| Estate tax | Donation void | Property is part of gross estate; taxed accordingly; heirs cannot deduct “gift.” |
| Documentary stamp tax | Follows validity; void donation means no basis for DST on transfer. |
7. Comparison to Donation Mortis Causa
| Feature | Donation inter vivos | Donation mortis causa |
|---|---|---|
| Takes effect | Immediately upon acceptance | Upon donor’s death |
| Form | As per Arts. 748–749 | Must observe the formalities of a will (Arts. 728, 749 ¶3) |
| Revocability | Generally irrevocable once accepted | Revocable any time before death |
Unnotarized deeds are sometimes defended as “mortis causa” to escape Art. 749, but courts reject this if testamentary formalities (two witnesses, etc.) are absent.
8. Practical Checklist for Donees (While Donor Is Alive)
Confirm capacity of donor and donee.
Draft correct deed:
- Movable ≤ ₱5 000: oral + delivery.
- Movable > ₱5 000: written deed signed by both.
- Real property: full public instrument.
Ensure acceptance: preferably in the same notarized deed.
Notarize immediately.
Register (land: Registry of Deeds; shares: corporate books).
Pay taxes within BIR deadlines.
Failure at any step may void the donation or expose the donee to estate tax later.
9. Curative Options If Donor Has Already Died
| Option | Viability | Notes |
|---|---|---|
| Post‑death notarization | ❌ Not allowed | Deed had no legal life to witness. |
| Ratification by heirs | ❌ Not effective | Void acts cannot be ratified. |
| Reconveyance suit based on equity | Rare | Courts seldom override the Civil Code’s clear mandate. |
| Settlement agreement with heirs | ✅ Contractual | Heirs may voluntarily cede the property, but this is a new transfer, subject to its own taxes and formalities. |
10. Key Takeaways
- Form is everything. For land, notarization is indispensable; for high‑value movables, a written deed is indispensable.
- Timing is critical. Acceptance and notice must occur before the donor dies.
- No second chances. Once the donor passes without the formalities completed, the deed is void forever.
- Plan early. Engage counsel and notary while the donor is alive to avoid litigation and tax pitfalls.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. Laws and interpretations may change, and specific facts matter. Consult a qualified Philippine lawyer for advice on any particular situation.