Lee vs. Tambago

A notary public who fails to observe the mandatory formalities of notarization and will execution—such as allowing only two witnesses for a notarial will, failing to note the witnesses' residence certificates, and accepting an expired residence certificate from the testator—is guilty of professional misconduct warranting suspension from the practice of law and perpetual disqualification from being commissioned as a notary public.

A complainant filed a disciplinary complaint against a lawyer-notary public who notarized his deceased father's will, claiming the will was spurious, the witnesses' signatures were forged, and the notary blatantly disregarded the Notarial Law.

• Original Filing: A.C. No. 5281 (Letter-complaint dated April 10, 2000, filed directly with the SC)
• Lower Court Decision: N/A (Administrative case referred to IBP)
• Appeal: IBP Board of Governors modified the Investigating Commissioner's recommendation (increased suspension from 3 months to 1 year, added revocation of notarial commission and 2-year disqualification).
• SC Action: Automatic review by SC of IBP recommendation in administrative cases against lawyers.

• The Complaint: Manuel L. Lee charged Atty. Regino B. Tambago with violating the Notarial Law and legal ethics for notarizing a spurious last will and testament of Vicente Lee, Sr.
• Defects in the Will: The will bequeathed the estate to the decedent's wife and half-siblings. Complainant alleged his father never executed it and the witnesses' signatures were forged.
• Notarial Violations: The will was attested by only two witnesses (Cayetano Noynay and Loreto Grajo) instead of three. The acknowledgment lacked the residence certificate notations of the witnesses. The testator's residence certificate noted in the acknowledgment was dated January 5, 1962, but the will was executed on June 30, 1965 (expired cedula).
• Missing Archive Copy: The NCCA archives division certified that no copy of the will was on file; the entry for that date/book referred to an affidavit of a different person.
• Respondent's Defense: Respondent claimed the will was validly executed, supported by affidavits from the decedent's common-law wife and children. He argued the complaint was mere harassment due to a failed Ombudsman case. He admitted not filing a copy with the archives. To prove he made entries in his notarial register, he presented photocopies of the register and a certification, claiming he crossed out a prior entry to enter the will. He also argued complainant had no cause of action without first filing a separate civil action to nullify the will.

• Respondent violated the Notarial Law and legal ethics by notarizing a spurious will.
• The will is void for lacking the required three attesting witnesses.
• The acknowledgment omitted the residence certificate numbers of the witnesses.
• The testator used an expired residence certificate.
• No copy of the will was filed with the archives division.

• The will was validly executed and notarized, supported by affidavits from the decedent's family.
• The complaint is purely for harassment because a criminal case in the Ombudsman failed.
• Complainant lacks a cause of action without a prior action for declaration of nullity of the will.
• He complied with notarial register entries by crossing out a prior entry (evidenced by photocopies).
• No copy was filed with the archives, but the law does not require it.

• Procedural Issues: Whether complainant has a cause of action against respondent without first filing a separate action for declaration of nullity of the will.
• Substantive Issues:
  • Whether respondent violated the Notarial Law and the CPR in notarizing the contested will.
  • Whether respondent's failure to file a copy of the will with the archives division warrants disciplinary action.
  • Whether respondent's failure to make proper entries in his notarial register warrants disciplinary action.

• Procedural: The SC implicitly rejected the argument that a prior nullity action is required. The administrative liability stems directly from the breach of notarial duties, which undermines public confidence in notarized documents, regardless of a separate civil action on the will's validity.
• Substantive:
  • Respondent committed gross violations of the Notarial Law. A notarial will requires three or more credible witnesses; having only two renders the will void under Art. 804 of the Civil Code.
  • Respondent failed to note the residence certificates of the witnesses and allowed the testator to use an expired residence certificate, violating Sec. 251 of the Revised Administrative Code and Sec. 6 of the Residence Tax Act. The notation of residence certificates is mandatory to establish the true identity of the signatories.
  • Failure to file a copy of the will with the archives division is not a ground for disciplinary action. Art. 806 of the Civil Code explicitly states the notary is not required to retain a copy or file one with the Clerk of Court.
  • Respondent failed to prove he made proper entries in his notarial register. He presented mere photocopies of the register, which are inadmissible secondary evidence without proof of unavailability of the originals. This violates Sec. 246 of the Revised Administrative Code.
  • These violations constitute professional misconduct, violating the Lawyer's Oath, Rule 138 of the Rules of Court, and Canon 1 and Rule 1.01 of the CPR. Disbarment was not warranted as the misconduct did not seriously affect his standing and character as an officer of the court to the highest degree, but suspension and perpetual disqualification as a notary were justified.

• Strict observance of notarial formalities — Notaries public must observe with utmost care and fidelity the basic requirements in the performance of their duties; defects in the observance of solemnities prescribed by law render the entire will invalid, especially when the testator and witnesses are deceased and cannot confirm the instrument.
• Secondary Evidence Rule — A photocopy is mere secondary evidence and is inadmissible unless the proponent first proves the existence and the cause of unavailability of the original without bad faith on their part.
• Disbarment as a penalty — Disbarment is the most severe disciplinary sanction and should be exercised with great caution; it is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. If a less severe punishment like suspension accomplishes the end desired, disbarment is not warranted.

• Art. 804, Civil Code — Requires a notarial will to be subscribed at the end by the testator and attested by three or more credible witnesses. Applied to show the will was void for having only two witnesses.
• Art. 806, Civil Code — Requires every will to be acknowledged before a notary public; explicitly states the notary is not required to retain or file a copy. Applied to exonerate respondent from the charge of failing to file a copy with the archives.
• Sec. 251, Revised Administrative Code (Old Notarial Law) — Requires notation of residence certificate details on acknowledged documents. Applied to show respondent violated the law by omitting witness cedulas and accepting an expired testator cedula.
• Sec. 246, Revised Administrative Code — Enumerates the matters to be entered in the notarial register in chronological order. Applied to show respondent failed in his duty to make proper entries.
• Sec. 249(b) & (f), Revised Administrative Code — Grounds for revocation of notarial commission (failure to make proper entries, failure to note cedulas).
• Sec. 5, Rule 130, Rules of Court — Rules on admissibility of secondary evidence when original is unavailable. Applied to reject respondent's photocopies of his notarial register.
• Canon 1 & Rule 1.01, CPR — A lawyer shall uphold the Constitution, obey the laws, and not engage in unlawful, dishonest, or deceitful conduct. Applied to hold respondent liable for professional misconduct.