Notarization.-- A will is a public instrument that is why it must notarized

7. Notarization.-- A will is a public instrument that is why it must notarized.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

Balane:

1. Cruz v. Villasor.-- This case involves a will wherein the notary public was also one of the three instrumental witnesses. Did the will comply w/ the requirement of 3 witnesses? No. The SC gave 2 reasons: (1) The notary public cannot be an oath witness and at the same time an oath taker.

It is impossible for him to acknowledge before himself; (2) the aim of the notary public to insure the trustworthiness of the instrument would be lost bec. he will try to insure the validity of his own act.

General rule: The notary public cannot be a witness.

Exception: When there are more than 3 witnesses. In such a case, the requisite of 3 witnesses is achieved.

2. Gabucan v. Manta.-- In the case, the notarial acknowledgement of the will lacked a documentary stamp. As such the judge in the lower court denied probate. Does the absence of the documentary stamp invalidate the will? No. The absence of the documentary stamp does not affect the validity of the will. Its only effect is to prevent it from being presented as evidence. The solution is to buy a documentary stamp and attach it to the will.

3. Javellana v. Ledesma.-- The case deals w/ the question of whether or not the acknowledgement of the will should be done on the same occasion as the execution of the will. The SC said no. The law does not require that execution and acknowledgement be done on the same occasion.

Acknowledgement may be validly done after execution. In fact, the testator and the witnesses do not have to acknowledge together. You can acknowledge one by one. The law does not require it to be made simultaneously. As long as the testator maintains his testamentary capacity and the witnesses maintain their witnessing capacity until the last person acknowledges, then the will is valid. However, if the testator dies before the last person acknowledges, then the will is not valid.

The will is considered as being unacknowledged.

4. Questions.

Q1: Can a witness be an agent who will sign for the testator?

A1: (a) Yes. There is no prohibition.

(b) No. The testator must sign before 3 witnesses. He cannot sign before himself.

To be safe, do not let this happen. As the lawyer, be sure you have at least 3 witnesses.

Q2: Is there any particular order of signing?

A2: (a) No. As long as the signing is done on one occasion or one continuing transaction.

(b) Yes. If the signing is not done on one occasion or transaction. In such a case, there is nothing that the witness is attesting to.

Articles 807 and 808 are special additional requirements which are mandatory.

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Balane: This provision lists down a special requirement if a notarial will is executed by a deaf-mute testator.

1. There are two cases contemplated: (1) If the testator can read, then he must read the will personally; (2) If illiterate, then 2 persons must read the will and communicate to him the meaning of the will in some practicable manner.

2. The law is not clear if the 2 persons reading it to him would do it separately or in consonance.

3. These additional requirements are mandatory by perfect analogy to the case of Garcia v. Vasquez..

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Balane:

1. If the testator is blind, the will must be read to him twice: (1) by one of the subscribing witnesses; and (2) by the notary public, not necessarily in that order.

2. a. Is the provision mandatory? Yes. If this is not followed, the will is void. (Garcia v. Vasquez.)

In the case, the will was read to the testator only once. The SC denied probate of the will for failing to comply w/ the requirements of Art. 808. Such failure is a formal defect.

b. Can this be presumed? No.

c. Can this be proven to have been complied w/ by competent evidence? Yes. In the absence of w/c the will is void. Such fact or reading must be proven by evidence during the probate proceedings.

3. Purpose: The reading is mandatory for the purpose of making known to the testator the provision of the will so that he may object if it is not in accordance w/ his wishes.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805. ( bff-iii-du)

Balane: This is a liberalization rule, an attempt to liberalize Articles 804 to 808. Substantial compliance w/ Articles 805 and 806 will validate the will despite some defects in the attestation clause.

Looking at Art. 809, you get the impression of utmost liberalization. We can not determine how liberal we can be or can we go. This article does not give a clear rule. JBL Reyes and Tolentino suggest that you make a distinction.

Guide: If the defect is something that can be remedied by the visual examination of the will itself, liberalize. If not, then you have to be strict.

Illustration: If in an attestation clause, the number of pages used was not stated, then you can liberalize bec. by examining the will itself, you can detect the defect. This is bec. the pagination of statement in the attestation clause is merely a double check.

If the attestation clause failed to state that "the testator signed in the presence of witnesses," and this cannot be remedied by visual examination of the will, then you need to be strict.

Suggested amendment of the law: "If such defect and imperfections can be supplied by examination of the will itself and it is proved."

Articles 810 to 814.-- Provisions on Holographic Wills.

Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, AND MAY BE MADE IN OR OUT OF THE PHILIPPINES, AND NEED NOT BE WITNESSED. (EDS)

Balane:

A. Advantages:

1. Cheaper, simple, easier to revise, no notary public needed

2. Absolute secrecy is guaranteed- only you, the father and the members of the family will know its contents.

Disadvantages:

1. Precisely bec. it guarantees secrecy and is simpler, it is also easier to falsify-- less people you need to collude w/-- only yourself, but in attested will, you need at least four (4) other people.

2. It may not express testator's wishes due to faulty expression

3. No protection against causes vitiating consent bec. there are no witnesses-- danger is higher.

4. Does not reveal testamentary capacity of testator due to lack of witnesses

5. Easier to conceal than an attested will.-- you can allege that no will was made

6. Generally, danger of ambiguity is greater than in attested wills.-- bec. testator is not a lawyer, he may not understand technical and legal words. In attested will, the testator is assisted by a lawyer.

JBL Reyes opines that the disadvantages outweigh the advantages. He suggested a middle ground, a mystic will (testamento cerrado.) It is not as strict as a notarial will, but not as fraught w/ risks as a holographic will. This kind of will is sealed in an envelope and brought to the notary who puts his seal and signs to authenticate, and it will be opened only upon the death of the testator. This kind of will minimizes the risk of fraud and protects the privacy of the testator.

B. Real Requirements.-- MANDATORY.-- must be by the hand of the testator himself.