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QUERY: My mother died at the Manila Doctors’ Hospital on Jan. 5,
2000, after executing a will naming me as executrix. The will was
notarized by my compadre who is a notary public in Bulacan. I intend
to have said will probated in Quezon City where our family resides.
However, my brother and sister—after seeing the contents of the
will—manifested their opposition, saying it is void, as it runs
counter to the provisions of the Civil Code. I am deeply depressed
as I spent a lot for the hospitalization of my mother.
Is the will void just because it was notarized
by a neighbor-lawyer who was commissioned as notary public for
Bulacan? I believe that the territorial jurisdiction of the notary
public did not affect the validity of my mother’s notarial
will.-Carmen D.
Reply: One of the formalities required by law
in connection with the execution of a notarial will is that it must
be acknowledged before a notary public by the testator and the
witnesses. The other formalities are: the will must be in writing;
it must be written in a language or dialect known to the testator;
it must be subscribed at the end by the testator himself or by the
testator’s name written by some other person in his presence, and
under his expressed direction; it must be attested and subscribed by
three or more credible witnesses in the presence of the testator and
of one another; the testator or the person requested by him to write
his name and the instrumental witnesses of the will shall also sign
each and every page, except the last, on the left margin; all the
pages of the will must be numbered correlatively in letters placed
on the upper part of each page; and the will must contain an
attestation clause.
The acknowledgement before a notary public by
the testator and the witnesses is an indispensable requisite of the
validity of a will. This was underscored by the Supreme Court In the
Matter of the Testate Estate of the Deceased Vicente G. Alberto (105
Phil. 1289), which ruling was reiterated in Guerrero vs. Bihis (521
SCRA 398).
The acknowledgment of a notarial will coerces
the testator and the instrument witnesses to declare before an
officer of the law, the notary public, that they executed and
subscribed to the will as their own free act or deed (Azuela vs.
Court of Appeals, 487 SCRA 119). Such declaration is under oath and
under pain of perjury, paving the way for the criminal prosecution
of persons who participate in the execution of spurious wills, or
those executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of a
certain mindset in making the testamentary dispositions to the
persons instituted as heirs or de-signated as devisees or legatees
of the will.
Acknowledgment can only be made before a
competent officer, that is, a lawyer duly commissioned as a notary
public. Section 237 of the Notarial Law prescribes the form of
commission for notary public—and that he/she possesses authority
to do notarial act only within the limits of his/her territorial
jurisdiction. Outside the place of his/her jurisdiction, he/she is
bereft of power to perform any notarial act; he is not a notary
public. Thus, any notarial act outside the limits of his/her
jurisdiction has no force and effect. As the High Tribunal pronounced
in Tecson vs. Tecson: An acknowledgment taken outside the
territorial limits of the officer’s jurisdiction is void as it
were wholly without official character (61 Phil. 781).
Further, I wish to advert to Article 5 of the
Civil Code which provides: “Acts executed against the provisions
of mandatory or prohibitory laws shall be void, except when the law
itself authorizes their validity.”
I think your query has been fully answered. At
the same time, this should serve as a reminder to all notaries.
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Above all things, let us reflect on the
following statement of our Lord and Master Jesus Christ: “Whoever
has my commandments and observes them is the one who loves Me. And
whoever loves Me will be loved by My Father, and I will love him and
reveal Myself to him.” (John 14:21).
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