Nature of the Case: This is a complaint against Atty. Regino Tambago, charging him with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.
Facts
Complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. The spurious will also contained the forged signatures of the purported witnesses to its execution. The will was purportedly executed and acknowledged before the respondent on June 30, 1965. However, the resident certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. Furthermore, the signature of the testator did not match his signature in a deed of donation. Complainant also questioned the absence of notation of the residence certificates of the witnesses, and that their signatures have also been forged. Lastly, he asserted that no copy of the will was on file in the archives division of the National Commission for Culture and the Arts (NCCA).
In his defense, the respondent alleged that the complainant was not a son of the decedent, and that the last will and testament was validly executed and actually notarized by respondent. He claimed that no copy of the contested will could be found in the archives because none was filed. He also contended that there was no cause of action since the complainant did not first file an action for the declaration of nullity of the will and demand his share in the inheritance, and that the complainant was just harassing him because he lost in the criminal case he filed against the respondent.
The investigating commissioner of the IBP found the respondent guilty of violating the old Notarial Law and Rule 1.01 of the Code of Professional Responsibility, and recommended the suspension of the respondent from the practice of law for 3 months. The IBP Board of Governors adopted and approved it but modified the penalty to 1 year of suspension and 2 years of revocation from reappointment as Notary Public.
Issue
Whether the respondent Atty. Tambago is guilty of professional misconduct, thus warranting his suspension from the practice of law.
Held
Yes. The respondent Atty. Tambago is found guilty of professional misconduct. He violated the Lawyer’s Oath; Rule 138 of the Rules of Court; Canon 1 and Rule 1.01 of the Code of Professional Responsibility; Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law. As such, he is SUSPENDED from the practice of law for 1 year, his notarial commission is revoked, and is perpetually disqualified from reappointment as a notary public.
Reasoning
Firstly, the will is considered void because it being attested by only two witnesses did not comply with the Notarial law which requires the attestation of three or more credible witnesses in the presence of the testator and of one another.
Secondly, the requirement on the acknowledgment of the will was neither strictly nor substantially complied with because of the absence of a notation of the residence certificates of the notarial witnesses in the acknowledgment. Likewise, 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.
Thirdly, the respondent failed to make the necessary entries pertaining to the will in his notarial register as required by the old Notarial Law. The photocopies of the respondent’s notarial register and the certification which the respondent used to prove his compliance with this requirement was inadmissible as evidence of the entry of the execution of the will because it failed to comply with the rules on the admissibility of secondary evidence, which required him to first prove the existence and cause of the unavailability of the original document.
The Court emphasized that as a notary public, the respondent was bound to strictly observe these elementary requirements as they are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents and that, as in this case, the testator and and the witnesses are no longer alive to identify the instrument. Otherwise, the confidence of the public in the integrity of notarized deeds will be undermined. As a consequence of the respondent’s breach of duty, the validity of the will was seriously compromised.
The practice of law is a privilege burdened with conditions. The first and foremost duty of a lawyer is to obey the laws of the land. For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensation of justice. Hence, the respondent’s gross violations of the law also made him liable for violation of his oath as a lawyer and Canon 1 and Rule 1.01 of the Code of Professional Responsibility.
References
A.C. No. 5195. (2009, April 6). The LawPhil Project. https://lawphil.net/judjuris/juri2009/apr2009/ac_5195_2009.html