Cruz vs. Villasor

A notary public before whom a will is acknowledged cannot simultaneously act as the third attesting witness because they cannot acknowledge their own signature before themselves, resulting in only two witnesses acknowledging the will in contravention of Arts. 805 and 806 of the Civil Code.

The case involves the probate of the last will and testament of the late Valente Z. Cruz. His surviving spouse, Agapita N. Cruz, opposed the allowance of the will on grounds of fraud, deceit, misrepresentation, undue influence, lack of informed consent regarding the properties disposed, and non-compliance with legal formalities.

• Original Filing: Court of First Instance (CFI) of Cebu
• Lower Court Decision: CFI allowed the probate of the will, applying substantial compliance based on American jurisprudence.
• Appeal: Petition for Review on Certiorari directly to the SC.
• SC Action: The SC gave due course to the petition and reversed the CFI decision.

• The Will and the Witnesses: Valente Z. Cruz executed a last will and testament (Exhibit "E"). The will was attested and subscribed to by three instrumental witnesses: Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr.
• The Notary Public: Atty. Angel H. Teves, Jr., the third attesting witness, simultaneously acted as the Notary Public before whom the will was acknowledged.
• The Probate Opposition: Agapita N. Cruz, the surviving spouse, opposed the probate, alleging fraud, deceit, misrepresentation, undue influence, and that the will was not executed in accordance with law.
• The CFI Ruling: The CFI allowed the probate, reasoning there was substantial compliance with the three-witness requirement even if the notary public acted as one of them, relying on American jurisprudence.

• The will was not executed in accordance with Arts. 805 and 806 of the Civil Code.
• Art. 805 requires at least three credible witnesses to attest and subscribe to the will.
• Art. 806 requires the testator and the witnesses to acknowledge the will before a notary public.
• Since the third witness is the notary public himself, only two witnesses appeared before the notary public to acknowledge the will, failing the statutory requirement.

• There was substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them.
• Relied on 57 American Jurisprudence, p. 227, which states practical reasons exist for upholding a will against purely technical reasons where a required witness signed as certifying to an acknowledgment under oath rather than attesting the execution.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether the will was executed in accordance with law, specifically Arts. 805 and 806 of the Civil Code, considering that one of the three attesting witnesses was also the notary public who acknowledged the will.

• Procedural: N/A
• Substantive: The SC ruled the will was not executed in accordance with law.
• The notary public cannot be considered the third instrumental witness because they cannot acknowledge before themselves their having signed the will.
• "To acknowledge before" means to avow, own as genuine, assent, or admit "in front of or preceding in space." A notary public cannot split their personality into two so one part appears before the other to acknowledge their participation.
• The function of a notary public is to guard against illegal or immoral arrangements. If the notary public is also an attesting witness, they become interested in sustaining the validity of the will and their own act, placing them in an inconsistent position and thwarting the purpose of acknowledgment, which is to minimize fraud.
• American precedents allowing a notary to act as a witness are inapplicable because those notaries acted merely as attesting witnesses, not as acknowledging witnesses. Art. 806 explicitly requires the testator and the required number of witnesses to appear before the notary public to acknowledge the will.
• Allowing the notary to act as the third witness effectively leaves only two attesting witnesses who appeared before the notary, violating Art. 805 (requiring at least three credible witnesses) and Art. 806 (requiring all to appear before the notary).

• Notary Public Cannot Be the Third Attesting Witness to a Will — A notary public before whom a will is acknowledged cannot simultaneously act as the third attesting witness. Because the notary cannot acknowledge their own signature before themselves, only two witnesses effectively acknowledge the will before the notary, violating the strict formal requirements of Arts. 805 and 806 of the Civil Code.
• Requisites for a valid notarial will under Arts. 805 and 806:
  1. At least three credible witnesses must attest and subscribe to the will in the presence of the testator and of each other.
  2. The testator and the required number of witnesses must appear before a notary public to acknowledge the will.
  3. The notary public before whom the will is acknowledged must be distinct from the three attesting witnesses to ensure three witnesses actually appear and acknowledge before the notary.

• Article 805, Civil Code — Requires at least three credible witnesses to attest and subscribe to the will in the presence of the testator and of each other. The SC applied this by ruling that if the notary public acts as the third witness, only two witnesses effectively attest and subscribe before the notary, violating this provision.
• Article 806, Civil Code — Requires every will to be acknowledged before a notary public by the testator and the witnesses. The SC applied this by emphasizing that the notary public cannot acknowledge the will before themselves, meaning the required number of witnesses did not appear before the notary public, violating this provision.