G.R. No. L-32213, 26 November 1973, 54 SCRA 31
The CFI of Cebu allowed the probate of the will of Valenti Cruz. Petitioner Agapita Cruz, spouse of the decedent, however, opposed the allowance of such will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. She further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law.
One of the witnesses, Angel Tevel Jr. was also the notary public before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses notwithstanding the fact that the notary public was one of them.
Whether or not the will is valid.
NO. The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to assent, admit, and ‘before’ means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd.
Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.
*Case digest by Margaret R. Manjaal, LLB-IV, Andres Bonifacio College Law School, SY 2018-2019