Q. Hi, I was wondering if you can clarify some issues regarding a property in the Philippines.
My father who is a US Citizen is the only surviving heir of his parents who are both deceased. His parents left a piece of land in the Philippines. My grandparents have four kids, three of which are already deceased and my dad who lives here in the US. One of my dad’s sisters had a notarized document signed stating that she is waving her share to her property and giving it to my dad.
The said document was signed by his sister (who is the one giving her share to my dad), my dad and the widower and daughter on his other sister who was deceased at the time the document was notarized. The other living brother did not sign the document. The aunt who wants to give her share to my dad do not have any kids, however she raised the illegitimate son of her husband as her own.
My cousin is stating that my aunt’s name is on the birth certificate even though she was not the biological mother. My dad can’t confirm this at this time since he does not have a copy of the said certificate.
My questions are:
1. Is the notarized document valid in the absence of a will? Since the notarized document is only specifying her share on the property not the whole property, do the other siblings have to agree or sign the notarized document?
2. If my aunt did sign the birth certificate, can her share be given to that person even though there is a notarized document stating differently?
Thank you for your time. Best Regards, M
Ans: Hereunder are the answers to your questions, pursuant to Philippine law:
1. Firstly, the absence of a specific description and nature of the “notarized document” that you mentioned is by itself a challenge, as this representation does not have the opportunity to actually examine and physically peruse the “Notarized Document” you mentioned. Hence, we can just speculate as to the nature of this document.
Based on the facts you stated, we could only assumed that the “notarized document “being referred to is a form of “waiver”. It could also be an instrument of sale or donation (without valuable consideration) conveying her rights or share of the property in favor of your dad.
Assuming further that the notarized document is actually a Deed of Sale, and/or if it is a “Donation” and it took effect during the lifetime of the Donor and your dad has already accepted the same in accordance with the formalities as prescribed by law, then the Deed of Donation or Deed of Sale as the case may be, could have already transferred ownership of the share of your aunt to your dad. And if the said share/waiver was made during the life time of your aunt, then her purported heir has no right over that portion of the property in question.
Now , as regards to share of your dad’s other siblings who are deceased and did not sign the so called “notarized documents” , this simply means that their heirs (children or spouse) are entitled to inherit “per stirpes” from the share of their respective deceased parents by” right of representation.”
2. Now as regards to this “child” or your “cousin” who is not the biological daughter of your aunt notwithstanding that the birth certificate states otherwise, this “child” has no right yet over the said portion of the property being waived in favor of your dad, for reason that her purported mother which is your aunt is still alive at the time the waiver or conveyance of the property was made.
Under the law of succession, right of a child/children or heir to succeed or inherit only becomes effective upon the death of the ascendant or parent(s). During the lifetime of the parent, the rights of the child over the property of the parents to succeed are only inchoate.
Simply put, as a general rule, during the lifetime of the parents or as an owner of the property, they can convey, sell or transfer ownership of their property as they pleased.
Children have no right over the property of their parents during their lifetime. It is only upon the death of the parent(s) that this inchoate right becomes ripe to succeed by right of succession, either by will or in the absence of will by intestate succession, that their ownership and rights over the said property is vested.
Thank you for writing and good luck.