Below is a comprehensive discussion of the witness-signing requirements (and related formalities) for a Deed of Donation in the Philippines. This article looks at the governing laws, practical considerations, and best practices to ensure the validity and enforceability of a Deed of Donation.

I. Overview of Donations Under Philippine Law

1. Definition of Donation

Under Articles 725 to 773 of the Civil Code of the Philippines, a donation is defined as an act of liberality whereby a person (the donor) disposes of a thing or right in favor of another (the donee), who accepts it. It requires:

Intent to donate (animus donandi) on the part of the donor.
Acceptance by the donee.

2. Forms of Donation

The law recognizes several forms of donation, primarily categorized by the nature of the property donated:

Donation of personal or movable property (governed by Articles 748 and 749 if the value is above PHP 5,000).
Donation of real or immovable property (also governed by Article 749).

For purposes of witnesses and formalities, donations of real property, or donations of personal property exceeding a certain value, are most relevant.

II. Formal Requirements for a Valid Deed of Donation

1. Donations of Real Property

Article 749 of the Civil Code provides that the donation of an immovable must be made in a public instrument (a notarized document). Likewise, the acceptance must be made in the same deed or in a separate public instrument—if in a separate instrument, it must be communicated in an authentic form (i.e., formally, typically in writing).

Because a donation of real property must be embodied in a public instrument, it requires:

Notarial Acknowledgment before a notary public.
Signature of the donor and the donee, or their authorized representatives, in the presence of the notary public (and typically, the instrumental witnesses).

2. Donations of Personal Property

If the value of the personal property donated exceeds PHP 5,000 (Article 748 of the Civil Code), the donation and the acceptance must be made in writing. To bind third parties and provide proof of the donation, most practitioners also recommend having such a written deed notarized and properly witnessed.

While the Civil Code specifies only “in writing” for movable donations exceeding PHP 5,000, notarization (and therefore the signature of witnesses) is a practical necessity to ensure validity (especially if legal disputes arise) and to comply with best legal practice.

III. Philippine Notarial Practice and Witness Requirements

1. The Public Instrument Requirement

When the law requires a public instrument—most importantly, for donations of real property—the deed must conform with the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC) and any subsequent updates. A “public instrument” is one notarized before a notary public and conforms to certain formalities, including the presence of the parties and the required witnesses (commonly referred to as “instrumental witnesses”).

2. Signing and Witnesses in Notarized Documents

Under Philippine notarial rules and common practice:

The parties (donor and donee, or their authorized representatives) must appear personally before the notary public.
They must present competent evidence of identity (government-issued IDs, passports, etc.).
Two instrumental witnesses of legal age (and generally disinterested in the transaction) typically sign the deed alongside the notary public and the parties.

Although the Civil Code itself does not always explicitly mention the number of witnesses for a deed of donation, the standard notarial practice in the Philippines—especially for documents that must be in a public instrument—requires the signatures of two credible instrumental witnesses. The role of these witnesses is to attest:

That they personally saw the donor and donee (or their representatives) sign the deed.
That they are signing as witnesses voluntarily.
That they have no conflict of interest or direct stake in the donation.

3. Exceptions and Special Cases

If a signatory is physically unable to sign (e.g., by reason of illness or disability), the notary public must follow special rules under the Notarial Practice guidelines, which might include the presence of additional witnesses or a thumbmark in lieu of a signature.
In cases of “credible identifying witnesses” used to verify the identity of a party who has no valid ID, these witnesses are separate from the “instrumental witnesses” to the execution of the document. Nonetheless, these additional witnesses can serve a dual role if allowed under the notarial rules, as long as compliance with the rules is clear.

IV. Acceptance by the Donee and the Requirement of Witnesses

1. Acceptance in the Same Instrument

Ideally, the donee’s acceptance is included within the same deed. In this scenario, all signatures (donor, donee, notary public, and instrumental witnesses) appear in one public instrument.

2. Acceptance in a Separate Instrument

If the donee accepts the donation in a separate instrument:

That acceptance must likewise be made in a public instrument (and thus typically requires similar notarial formalities, including the signature of two witnesses).
The donor must be properly notified (Article 749, Civil Code).

Hence, in both methods, witness requirements mirror standard notarial rules—meaning two instrumental witnesses usually sign each document.

V. Potential Consequences of Not Adhering to Witness Requirements

Invalidity or Nullity of the Donation
If the donation of real property is not executed in a public instrument, it is typically deemed void. The same risk applies if the donation is of personal property above the threshold requiring a written (and effectively notarized) document.
Difficulty in Registration or Enforcement
For donations of real property, registration with the Registry of Deeds is crucial to protect the donee’s ownership against third parties. The Register of Deeds will likely refuse to record a donation instrument that is improperly executed (e.g., lacking proper notarization or missing witness signatures).
Future Legal Challenges
An improperly witnessed or unnotarized Deed of Donation (especially of real property) risks challenge by heirs or other parties on the basis of non-compliance with legal formalities.

VI. Best Practices for Executing a Deed of Donation

Engage a Lawyer
While not strictly mandated, having a lawyer prepare or review the Deed of Donation ensures compliance with all legal requirements (including witness formalities, acceptance clauses, etc.).
Ensure Proper Notarization
- Both donor and donee (or representatives) must appear before the notary public.
- Present competent identification.
- Have two credible witnesses sign the document, attesting to the execution.
Include Clear Acceptance
- Incorporate the acceptance clause for the donee into the deed or execute a separate public instrument of acceptance.
- Notify the donor if acceptance is in a separate deed.
Maintain Copies and Register (if Real Property)
- Secure multiple certified true copies of the notarized deed.
- Register the donation with the Registry of Deeds (for immovable property) to protect the donee’s title.
Observe Tax and Documentary Requirements
- Donations can be subject to Donor’s Tax under the National Internal Revenue Code.
- Filing donor’s tax returns and paying the corresponding taxes timely will be critical to perfect title and avoid penalties.

VII. Conclusion

In Philippine law, witness signing requirements for a Deed of Donation primarily derive from the need for the donation (especially of real property) to be executed in a public instrument, which—by notarial practice—includes the signatures of two instrumental witnesses. Failure to comply with these formalities can lead to serious legal consequences, including invalidation of the donation.

When preparing or finalizing a Deed of Donation, it is prudent to:

Execute the instrument in a manner fully compliant with the Civil Code.
Follow the 2004 Rules on Notarial Practice (or subsequent governing rules), particularly the requirement that there be two disinterested witnesses to the transaction.
Properly incorporate or attach the acceptance by the donee in the same or a separate notarized document.

Adhering to these requirements protects both donor and donee, ensuring the transaction’s legality and preventing future disputes. Whenever in doubt, parties are strongly advised to consult with a qualified Philippine lawyer to ensure that all legal and documentary requirements—witness-related and otherwise—are met.