FIRST DIVISION

[A.C. No. 5281. February 12, 2008.]

MANUEL L. LEE , complainant, vs . ATTY. REGINO B. TAMBAGO ,

respondent.

RESOLUTION

CORONA , J : p

In a letter-complaint dated April 10, 2000, 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.
In his complaint, complainant averred that his father, the decedent Vicente Lee,
Sr., never executed the contested will. Furthermore, the spurious will contained the
forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its
execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife
Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena
Lee, half-siblings of complainant. IETCAS

The will was purportedly executed and acknowledged before respondent on June
30, 1965. 1 Complainant, however, pointed out that the residence certi cate 2 of the
testator noted in the acknowledgment of the will was dated January 5, 1962. 3
Furthermore, the signature of the testator was not the same as his signature as donor
in a deed of donation 4 (containing his purported genuine signature). Complainant
averred that the signatures of his deceased father in the will and in the deed of donation
were "in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s]." 5
Complainant also questioned the absence of notation of the residence
certi cates of the purported witnesses Noynay and Grajo. He alleged that their
signatures had likewise been forged and merely copied from their respective voters'
affidavits.
Complainant further asserted that no copy of such purported will was on le in
the archives division of the Records Management and Archives O ce of the National
Commission for Culture and the Arts (NCCA). In this connection, the certi cation of the
chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in this
Office['s] files. 6 ICDcEA

Respondent in his comment dated July 6, 2001 claimed that the complaint
against him contained false allegations: (1) that complainant was a son of the decedent
Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that
complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and
testament was validly executed and actually notarized by respondent per a davit 7 of
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 Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint
affidavit 8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. .
. . ." 9 ATCEIc

Respondent further stated that the complaint was led simply to harass him
because the criminal case led by complainant against him in the O ce of the
Ombudsman "did not prosper".
Respondent did not dispute complainant's contention that no copy of the will
was on le in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not rst le an action for the declaration of nullity
of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 1 0
In his report, the investigating commissioner found respondent guilty of violation
of pertinent provisions of the old Notarial Law as found in the Revised Administrative
Code. The violation constituted an infringement of legal ethics, particularly Canon 1 1 1
and Rule 1.01 1 2 of the Code of Professional Responsibility (CPR). 1 3 Thus, the
investigating commissioner of the IBP Commission on Bar Discipline recommended
the suspension of respondent for a period of three months. HDTISa

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26,
2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with
modification , the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this Resolution as
Annex "A"; and, nding the recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering Respondent's failure to
comply with the laws in the discharge of his function as a notary public, Atty.
Regino B. Tambago is hereby suspended from the practice of law for one year
and Respondent's notarial commission is Revoked and Disquali ed from
reappointment as Notary Public for two (2) years. 1 4

We affirm with modification.

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. 1 5 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of
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. 1 6 aSIETH

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. 1 7
The will in question was attested by only two witnesses, Noynay and Grajo. On
this circumstance alone, the will must be considered void. 1 8 This is in consonance with
the rule that acts executed against the provisions of mandatory or prohibitory laws
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 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. 1 9 The importance of this requirement
is highlighted by the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision. 2 0
An acknowledgment is the act of one who has executed a deed in going before
some competent o cer 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. 2 1 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. STIcaE

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 certi cates of the
notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of
the testator's old residence certi cate in the same acknowledgment was a clear breach
of the law. These omissions by respondent invalidated the will.
As the acknowledging o cer of the contested will, respondent was required to
faithfully observe the formalities of a will and those of notarization. As we held in
Santiago v. Rafanan: 2 2
The Notarial Law is explicit on the obligations and duties of notaries
public. They are required to certify that the party to every document
acknowledged before him had presented the proper residence certi cate (or
exemption from the residence tax); and to enter its number, place of issue and
date as part of such certification. HDTISa

These formalities are mandatory and cannot be disregarded, considering the

degree of importance and evidentiary weight attached to notarized documents. 2 3 A
notary public, especially a lawyer, 2 4 is bound to strictly observe these elementary
requirements.
The Notarial Law then in force required the exhibition of the residence certi cate
upon notarization of a document or instrument:
Section 251. Requirement as to notation of payment of [cedula]
residence tax. — Every contract, deed, or other document acknowledged before a
notary public shall have certi ed thereon that the parties thereto have presented
their proper [cedula] residence certi cate or are exempt from the [cedula]
residence tax, and there shall be entered by the notary public as a part of such
certi cate the number, place of issue, and date of each [cedula] residence
certificate as aforesaid. 2 5
AEITDH

The importance of such act was further reiterated by Section 6 of the Residence
Tax Act 2 6 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any
document before a notary public . . . it shall be the duty of such person . . . with
whom such transaction is had or business done, to require the exhibition of the
residence certificate showing payment of the residence taxes by such person . . . .

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 In the issuance of a residence certi cate, the law seeks to establish the true and
correct identity of the person to whom it is issued, as well as the payment of residence
taxes for the current year. By having allowed decedent to exhibit an expired residence
certi cate, respondent failed to comply with the requirements of both the old Notarial
Law and the Residence Tax Act. As much could be said of his failure to demand the
exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a
copy of the notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witness. The notary public shall not be required to
retain a copy of the will, or le another with the o ce of the Clerk of
Court. (emphasis supplied) IDcTEA

Respondent's failure, inadvertent or not, to le 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. The old Notarial Law
required the entry of the following matters in the notarial register, in chronological
order: ACETID

1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of the

instrument. 2 7

In an effort to prove that he had complied with the abovementioned rule,

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. To
reinforce his claim, he presented a photocopy of a certi cation 2 8 stating that the
archives division had no copy of the affidavit of Bartolome Ramirez. AHcaDC

A photocopy is a mere secondary evidence. It is not admissible unless it is

shown that the original is unavailable. The proponent must rst prove the existence and
cause of the unavailability of the original, 2 9 otherwise, the evidence presented will not
be admitted. Thus, the photocopy of respondent's notarial register was not admissible
as evidence of the entry of the execution of the will because it failed to comply with the
requirements for the admissibility of secondary evidence.
In the same vein, respondent's attempt to controvert the certi cation dated
September 21, 1999 3 0 must fail. Not only did he present a mere photocopy of the
certi cation dated March 15, 2000; 3 1 its contents did not squarely prove the fact of
entry of the contested will in his notarial register.
Notaries public must observe with utmost care 3 2 and utmost delity the basic
requirements in the performance of their duties, otherwise, the con dence of the public
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 in the integrity of notarized deeds will be undermined. 3 3
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 con rm its contents. 3 4
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. 3 5 IEAacT

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. — The following derelictions of
duty on the part of a notary public shall, in the discretion of the proper judge of
first instance, be sufficient ground for the revocation of his commission:
xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his
notarial register touching his notarial acts in the manner required by
law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding
cedula certificates. 3 6

These gross violations of the law also made respondent liable for violation of his
oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules
of Court 3 7 and Canon 1 3 8 and Rule 1.01 3 9 of the CPR. cHSIAC

The rst and foremost duty of a lawyer is to maintain allegiance to the Republic
of the Philippines, uphold the Constitution and obey the laws of the land. 4 0 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. 4 1
While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate. 4 2 Being a lawyer, he is supposed to be
a model in the community in so far as respect for the law is concerned. 4 3
The practice of law is a privilege burdened with conditions. 4 4 A breach of these
conditions justi es disciplinary action against the erring lawyer. A disciplinary sanction
is imposed on a lawyer upon a nding or acknowledgment that he has engaged in
professional misconduct. 4 5 These sanctions meted out to errant lawyers include
disbarment, suspension and reprimand. HaAIES

Disbarment is the most severe form of disciplinary sanction. 4 6 We have held in a

number of cases that the power to disbar must be exercised with great caution 4 7 and
should not be decreed if any punishment less severe — such as reprimand, suspension,
or ne — will accomplish the end desired. 4 8 The rule then is that disbarment 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. 4 9
Respondent, as notary public, evidently failed in the performance of the
elementary duties of his o ce. Contrary to his claims that he "exercised his duties as
Notary Public with due care and with due regard to the provision of existing law and had
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 complied with the elementary formalities in the performance of his duties . . .," we nd
that he 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 su cient basis for the revocation of his commission 5 0 and his perpetual
disqualification to be commissioned as a notary public. 5 1
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyer's Oath; (2) Rule 138 of the Rules of
Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art.
806 of the Civil Code and (5) the provisions of the old Notarial Law.
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 o cer of the court, he is
PERPETUALLY DISQUALIFIED from reappointment as a notary public. prcd

Let copies of this Resolution be furnished to all the courts of the land, the
Integrated Bar of the Philippines and the O ce of the Bar Con dant, as well as made
part of the personal records of respondent.
SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Azcuna and Leonardo-de Castro, JJ., concur.

Footnotes
1. Rollo, p. 3.
2. Now known as Community Tax Certificate.
3. Page two, Last Will and Testament of Vicente Lee, Sr., rollo, p. 3.
4. Id., p. 10.
5. Id., p. 1.
6. Rollo, p. 9.
7. Dated July 11, 2001. Id., p. 94.
8. Dated July 11, 2001. Id., p. 95.
9. Id., p. 90.
10. Rollo, p. 107.
11. CANON 1 — A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF
THE LAND AND PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
12. Rule 1.01 — A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct.
13. Annex "A", Report and Recommendation by Commissioner Elpidio G. Soriano III, dated
February 27, 2006. Rollo, p. 13.
14. Notice of Resolution, IBP Board of Governors. (Emphasis in the original)
15. CIVIL CODE, Art. 783. EATCcI

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 16. Jurado, Desiderio P., COMMENTS AND JURISPRUDENCE ON SUCCESSION, 8th ed.
(1991), Rex Bookstore, Inc., p. 52. In re: Will of Tan Diuco, 45 Phil. 807 (1924); Unson v.
Abella, 43 Phil. 494 (1922); Aldaba v. Roque, 43 Phil. 379 (1922); Avera v. Garcia, 42 Phil.
145 (1921); Abangan v. Abangan, 40 Phil. 476 (1919).
17. CIVIL CODE, Art. 804.
18. CIVIL CODE, Art. 5.
19. CIVIL CODE, Art. 806.
20. Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 142.
21. Id.
22. A.C. No. 6252, 5 October 2004, 440 SCRA 98.
23. Santiago v. Rafanan, id., at 99.
24. Under the old Notarial Law, non-lawyers may be commissioned as notaries public
subject to certain conditions. Under the 2004 Rules on Notarial Practice (A.M. No. 02-8-
13-SC, effective August 1, 2004), however, only lawyers may be granted a notarial
commission.

25. REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 251.
26. Commonwealth Act No. 465.
27. REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 246.
28. Dated March 15, 2000. Rollo, p. 105.
29. "When the original document is unavailable. — When the original document has been
lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution
or existence and the cause of its unavailability without bad faith on his part, may prove
its contents by a copy, or by a recital of its contents in some authentic document, or by
the testimony of witnesses in the order stated." RULES OF COURT, Rule 130, Sec. 5. EATcHD

30. Supra note 6.

31. Rollo, p. 105.
32. Bon v. Ziga, A.C. No. 5436, 27 May 2004, 429 SCRA 185.
33. Zaballero v. Montalvan, A.C. No. 4370, 25 May 2004, 429 SCRA 78.
34. Annex "A", Report and Recommendation by Commissioner Elpidio G. Soriano III, dated
February 27, 2006, rollo, p. 12.
35. Id., p. 13.
36. REVISED ADMINISTRATIVE CODE, Book 1, Title IV, Chapter 11.
37. "Duties of attorneys. — It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to support the
Constitution and obey the laws of the Philippines;

(b) . . .," RULES OF COURT, Rule 138, Sec. 20, par. (a).
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 38. CANON 1, supra note 11.
39. Rule 1.01, supra note 12.

40. Montecillo v. Gica, 158 Phil. 443 (1974). Zaldivar v. Gonzales, G.R. No. L-79690-707, 7
October 1988, 166 SCRA 316.

41. Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex Bookstore, Inc.,
p. 69. Comments of IBP Committee that drafted the Code of Professional Responsibility,
pp. 1-2 (1980).
42. Id.
43. Id.
44. Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex Bookstore, Inc.,
p. 465.

45. Guidelines for Imposing Lawyer Sanctions, Integrated Bar of the Philippines
Commission on Bar Discipline. TIESCA

46. San Jose Homeowners Association, Inc. v. Romanillos, A.C. No. 5580, 15 June 2005,
460 SCRA 105.
47. Santiago v Rafanan, supra note 22 at 101. Alitagtag v. Garcia, A.C. No. 4738, 10 June
2003, 403 SCRA 335.
48. Suzuki v. Tiamson, A.C. No. 6542, 30 September 2005, 471 SCRA 140; Amaya v.
Tecson, A.C. No. 5996, 7 February 2005, 450 SCRA 510, 516.
49. Bantolo v. Castillon, Jr., A.C. No. 6589, 19 December 2005, 478 SCRA 449.
50. Cabanilla v. Cristal-Tenorio, A.C. No. 6139, 11 November 2003, 415 SCRA 361. Guerrero
v. Hernando, 160-A Phil. 725 (1975).
51. Tan Tiong Bio v. Gonzales, A.C. No. 6634, 23 August 2007.

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