Lee vs. Tambago

A notarial will attested by only two witnesses and containing a defective acknowledgment lacking the proper, valid residence certificates of the testator and witnesses is void, and a notary public who notarizes such an instrument is guilty of professional misconduct for failing to observe the strict solemnities prescribed by the Civil Code and the Notarial Law.

The dispute arose when a son discovered that his deceased father's purported last will and testament, which excluded him from the bulk of the inheritance, contained glaring formal defects and allegedly forged signatures, prompting him to file an administrative complaint against the lawyer who notarized the document.

• Filed as a letter-complaint directly with the Supreme Court
• Referred by the Supreme Court to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation
• Investigating Commissioner of the IBP Commission on Bar Discipline recommended a three-month suspension for the respondent
• IBP Board of Governors modified the recommendation to a one-year suspension, revocation of notarial commission, and two-year disqualification as a notary public
• Reviewed and decided by the Supreme Court with modification, imposing perpetual disqualification as a notary public

• Complainant Manuel L. Lee filed a complaint against respondent Atty. Regino B. Tambago for notarizing a spurious last will and testament purportedly executed by complainant's father, Vicente Lee, Sr., on June 30, 1965.
• The contested will bequeathed the decedent's entire estate to his wife, save for a parcel of land devised to complainant's half-siblings, effectively excluding the complainant.
• The will was attested by only two witnesses, Cayetano Noynay and Loreto Grajo, whose signatures were allegedly forged and copied from their voters' affidavits.
• The acknowledgment of the will noted the testator's residence certificate dated January 5, 1962, which was already expired at the time of the will's purported execution in 1965.
• The acknowledgment completely lacked any notation of the residence certificates of the two purported witnesses.
• The archives division of the National Commission for Culture and the Arts (NCCA) had no copy of the will on file; instead, the document number in the archives corresponded to an entirely different affidavit executed by a certain Bartolome Ramirez.
• Respondent attempted to prove he entered the will in his notarial register by presenting a mere photocopy of his register showing a crossed-out prior entry replaced by the decedent's will.

• Complainant argued that his father never executed the contested will and that the signatures of the testator and the witnesses were forged.
• Complainant pointed out the formal defects in the notarization, specifically the use of an expired residence certificate for the testator and the complete absence of residence certificates for the witnesses.
• Complainant asserted that the will was spurious because no copy of it existed in the archives division of the NCCA under the document number provided by the respondent.

• Respondent claimed the complainant was not a legitimate son of the decedent and filed the case merely for harassment after a prior criminal case in the Ombudsman did not prosper.
• Respondent maintained that the will was validly executed and actually notarized by him, supported by affidavits from the decedent's common-law wife and other children.
• Respondent argued he was not required to file a copy of the will with the archives division, which is why none could be found there.
• Respondent contended that complainant had no cause of action because he had not first filed a civil action for the declaration of nullity of the will to demand his inheritance share.

• Procedural Issues: N/A
• Substantive Issues: Did the respondent lawyer commit professional misconduct and violate the Notarial Law and the Civil Code provisions on testamentary succession by notarizing a will that had only two witnesses and a defective acknowledgment?

• Procedural: N/A
• Substantive: The Supreme Court ruled in the affirmative, holding that the respondent acted irresponsibly and violated the law by notarizing a legally void will.
• The Court emphasized that under the Civil Code, a notarial will must be attested and subscribed by three or more credible witnesses; because the contested will had only two witnesses, it was void on this circumstance alone.
• The Court ruled that the acknowledgment was fatally defective because it failed to note the residence certificates of the witnesses and used an expired residence certificate for the testator, breaching both the Notarial Law and the Residence Tax Act.
• The Court clarified that while Article 806 of the Civil Code does not require a notary public to file a copy of a will with the Clerk of Court or archives, the respondent was still liable for failing to make the proper, authentic entries in his notarial register.
• The Court rejected the respondent's photocopy of his notarial register as inadmissible secondary evidence because he failed to prove the unavailability of the original document.
• The Court concluded that the respondent's carelessness compromised the validity of the will and undermined public confidence in notarized documents, warranting his suspension from the practice of law for one year, the revocation of his notarial commission, and his perpetual disqualification from reappointment as a notary public.

• Concept of a Will — A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.
• Purpose of Formalities in Wills — The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments, and to guarantee their truth and authenticity.
• Requirement of Three Witnesses — A notarial will is required by law to be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another; a will attested by only two witnesses is void.
• Acknowledgment of Wills — An acknowledgment is the act of one who has executed a deed in going before a competent officer and declaring it to be his free act and deed; in a notarial will, it serves a two-fold purpose: to safeguard the testator’s wishes after demise and to assure the estate is administered as intended.
• Best Evidence Rule — A photocopy is mere secondary evidence and is not admissible unless the proponent first proves the existence and cause of the unavailability of the original document without bad faith on his part.

• "The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity."
• "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."

• Azuela v. Court of Appeals — Cited to emphasize the importance of the acknowledgment requirement in wills, highlighting that it was segregated from other requirements under Article 805 and embodied in a distinct and separate provision (Article 806) to ensure strict compliance.
• Santiago v. Rafanan — Cited to establish that the Notarial Law explicitly requires notaries to certify that parties presented proper residence certificates, and that these mandatory formalities cannot be disregarded given the evidentiary weight of notarized documents.

• Article 783, Civil Code — Defines a will as an act permitting a person to control the disposition of his estate after death, subject to legal formalities; used to establish the foundational concept of testamentary succession.
• Article 805, Civil Code — Mandates that a notarial will must be attested and subscribed by three or more credible witnesses; used to declare the contested will void for having only two witnesses.
• Article 806, Civil Code — Requires that every will must be acknowledged before a notary public by the testator and the witnesses, but explicitly states the notary is not required to retain a copy or file it with the Clerk of Court; used to evaluate the defective acknowledgment and clear respondent of the failure to file a copy with the archives.
• Article 5, Civil Code — Provides the general rule that acts executed against the provisions of mandatory or prohibitory laws shall be void; used to justify the nullity of the will due to lack of witnesses.
• Section 251, Revised Administrative Code (Old Notarial Law) — Requires the notation of the number, place of issue, and date of the residence certificates of the parties in the notarial acknowledgment; used to hold respondent liable for defective notarization.
• Rule 130, Section 5, Rules of Court — The Best Evidence Rule; applied to reject the respondent's photocopy of his notarial register as proof of entry.
• Rule 138, Section 20(a), Rules of Court — Outlines the duty of an attorney to maintain allegiance to the Republic and obey the laws; used as a basis for disciplinary action.
• Canon 1 and Rule 1.01, Code of Professional Responsibility — Mandates lawyers to uphold the Constitution, obey the laws, and refrain from engaging in unlawful, dishonest, immoral, or deceitful conduct; used to establish the ethical breach of the respondent.