Lee vs. Tambago (A.C. No. 5281, February 12, 2008)

Lee vs. Tambago (A.C. No. 5281, February 12, 2008)

FACTS:

Complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. The complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will and that the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution.

The will was purportedly executed and acknowledged before respondent on June 30, 1965. Complainant, however, pointed out that the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation.

Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA).

Respondent alleged that the last will and testament was validly executed and actually notarized by per affidavit⁷ of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. 

Further, respondent did not dispute complainant’s contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed.

The case was referred to the Integrated Bar of the Philippines (IBP) wherein respondent was found to have violated the old Notarial Law and legal ethics.

ISSUE/S:

1.    W/N the will is valid?

2.    Whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division

3.    Whether or not Atty. Tambago acted negligently in exercising his duties as Notary Public.

 

RULING:

1.    W/N the will is valid?

NO. The will is not valid.

·         The will was attested by only two witnesses

·         The acknowledgement of the will was defective. There was the conspicuous absence of a notation of the residence certificates of the notarial witnesses and the notation of the testator’s old (expired) residence certificate in the same acknowledgment was a clear breach of the law

 

A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.¹⁷

The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void. This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses.

An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed. The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testator’s wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator’s old residence certificate in the same acknowledgment was a clear breach of the law. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. These omissions by respondent invalidated the will.

These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents. A notary public, especially a lawyer, is bound to strictly observe these elementary requirements.

2.    Whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division

Respondent’s failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action. Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. 

Respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register.

The court ruled that the contention must fail.  Not only did he present a mere photocopy of the certification dated March 15, 2000; its contents did not squarely prove the fact of entry of the contested will in his notarial register.

3.    Whether or not Atty. Tambago acted negligently in exercising his duties as Notary Public.

YES. Respondent acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient basis for the revocation of his commission and his perpetual disqualification to be commissioned as a notary public.

The court ruled that notaries public must observe with utmost care and utmost fidelity the basic requirements in the performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.

Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm its contents.³⁴ Accordingly, respondent must be held accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.

 

DISPOSITIVE:

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.

 

#WILLS&SUCCESSION