This Succession Case tackles the chronological issues in signing a will or codicil for that matter. Whether which should come first. Must the document be accomplished in one sitting? Or once acknowledgements had all been accomplished, the unfinished document can be set aside for another day or two where concluding parts of it such as the notarial requisite be accomplished in a subsequent act.
Well the Old Civil Code of 1899 expressly requires that all be accomplished in one sitting, otherwise the instrument may be deemed invalid.
So I wonder how they pass on their inheritance in the olden days? Boy it must be all dramatic and all that stuff. Just imagine everyone is there, present. I mean if there be grudge and bad blood that runs in the family, consider the ordeal these documentary witnesses and notarial representative (should there'd be any) undergo when the family starts washing their dirty linens even in closed doors.
So I wonder how they pass on their inheritance in the olden days? Boy it must be all dramatic and all that stuff. Just imagine everyone is there, present. I mean if there be grudge and bad blood that runs in the family, consider the ordeal these documentary witnesses and notarial representative (should there'd be any) undergo when the family starts washing their dirty linens even in closed doors.
Let's try to take a look at one case.
Court admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma. The contestant was the sister and nearest surviving kin of the deceased. In her appeal she alleged that the will and codicil were not executed in accordance with law, well because:
1. The testament was executed at the house of the testator. [under the Old Civil Code of 1899] 2. But the codicil was executed and attested at the San Pablo hospital [after the enactment of the New Civil Code (NCC)], and therefore had to be acknowledged before a notary public.
So basically were talking about the acknowledgement of a codicil here. What is acknowledgement by the way? Is it any different from attestation? How about a Jurat?
Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the codicil was signed and attested at the San Pablo hospital, the Notary Public signed and sealed it on the same occasion. (Duh?) Notary public however, said that he did not do so, and that the act of signing and sealing was done afterwards. (Whut the...Is this the only difference between the old and the new code?.. this is what I hate about transitions)
Well, one clear allegation was that the certificate of acknowledgement (were talking about the notarial act) to the codicil was signed elsewhere, most probably in the office of the notary.
Nevertheless, what is the ISSUE here:
The issue is whether or not the signing and sealing of the codicil by notary public in the absence of the testator and witnesses affects the validity of the will.
RULING:
NO. Court held that unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and the notary be accomplished in one single act. All that is required is that every will must be acknowledged before a notary public by the testator and witnesses.
The subsequent signing and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate execution out of the presence of the testator and the witnesses cannot be a violation of the rule that testaments should be completed without interruption.
Alright let me get that straight: Let's do some differentiation here to somehow clear things up (I hope) and somehow make this post a reference:
NOTARIZATION vs. ATTESTATION
It’s a common assumption that “notarization” and “attestation” refer to the same type of act. But you see, while a public notary can only perform notarial acts, attestations are required for certain documents.
The act of notarization the signatures on a document can only by a legal public notary. it usually involves paying a fee, taking an oath, and being sworn in by the attesting authority.
Attestations, on the other hand, can be performed by anyone, regardless as to whether or not the individual is a public notary. It's common for public documents to require witness attestations, which basically means that a 3rd party must bear witness to the document’s signing. You see this 3rd party attests that the document was signed by the said person. So basically it is used in the context of validating the contents of a document.
Another key difference between notarial acts and attestations involves the way in which they are executed. When a notarial act is being performed, the public notary is usually required to place his or her official stamp or seal and recording log numbers on the document.
Someone who’s attesting the signatures on a document and/or its contents, on the other hand, are not required to place a stamp or seal on the document.
ATTESTATION vs. ACKNOWLEDGEMENT
An attestation however is different from an acknowledgement. Attestation is done by a witness. An acknowledgement is done by the party concerned.
You will also come across the word “Subscribe” in legal documents. Strictly speaking, the word “Subscribe” does not impute personal knowledge of the matter in consideration and is more in the nature of appending the names of signatures in a mechanical manner.
The term attested, when used in relation to a deed or document, means that the deed or document concerned is attested by two or more witnesses. So it is imperative that each of the witnesses should have seen the Testator (who is the executor of the document) sign the document. And each of them (3 or more Witnesses as in the case of a notarial will) should have signed as a witness in the presence of the Testator and all other Witnesses.
By the way, In the US their succession laws carries no specific or particular form prescribed for attestations. It is not necessary that the witnesses should sign in the presence of each other. It is only required that each of the witness has direct knowledge that the document had been signed by the Executor (which they refer to as Executant for that matter). Here in the Philippines on the other hand, our succession laws requires stricter application. Witnesses are expected to sign the notarial will as attestation in the presence of the Testator and other Witnesses.
Such in the case of Nera vs. Rimando two rooms were blocked by a curtain. One of the witnesses was in a the other room while the other witness was attaching his signature to the instrument in front of the testator. The lower court did not consider the position of the witnesses at the time of signing of vital importance. This lower court decision was based on an earlier ruling called the Jabonetta Case (Jabonetta vs. Gustillo) where it was held that it was not sufficient to invalidate execution of will. The CA affirmed this decision but when it reached the highest court the decision was overturned. The court said the line of vision of witness to the testator and other witnesses was blocked,
Such in the case of Nera vs. Rimando two rooms were blocked by a curtain. One of the witnesses was in a the other room while the other witness was attaching his signature to the instrument in front of the testator. The lower court did not consider the position of the witnesses at the time of signing of vital importance. This lower court decision was based on an earlier ruling called the Jabonetta Case (Jabonetta vs. Gustillo) where it was held that it was not sufficient to invalidate execution of will. The CA affirmed this decision but when it reached the highest court the decision was overturned. The court said the line of vision of witness to the testator and other witnesses was blocked,
I think in hindsight, the highest court was telling the lower court, 'You've used the right citational jurisprudence but you've misapplied the doctrine' Don't verbatim quote me on that. This is just my interpretation. You see the doctrine of the Jabonetta Case states that "True test of presence is not whether or not they saw each other sign but WHETHER THEY MIGHT HAVE SEEN EACH OTHER SIGN IF THEY CHOSE TO DO SO, considering their physical, mental condition and position in relation to each other at the moment of signing."
So as if the SC was saying 'If the curtain wasn't there and nothing is blocking the winess' vision even if he is positioned in the other room it might have been considered. But the curtain was there what can we do, the Jabonetta Case had provided the standard' Again don't quote me on that. I just can't stop my creative juices coming out. So the bottom-line is they should see each other sign.
More on ACKNOWLEDGEMENT:
You know at times, a person may sign his or her name in a deed or document for identifying an Executor. The purpose of this is only to confirm the identity and such. The identifier does not become an Attestor for the execution of deed or document concerned.
The term “Sign” generally mean affixing the signature or otherwise affixing the name or a mark to represent the name of a person. The “signing” should be such that it would bind the person concerned as relating to the aspect of signing. Even the insertion of a name, done in the manner required, may amount to signing, authentication or attestation as the case may be.
JURAT vs. ACKNOWLEDGEMENT
Now, Acknowledgement and Jurat are the two most common notarial acts. Actually there is confusion among law students about the difference between these two.
A jurat is used when the signer is swearing to the content of the document. The notary must administer an oath or affirmation to the signer in order to complete the jurat. A jurat also requires that the signer signs in the presence of the notary. it's quite easy to identify a Jurat in a legal document. Just find the portion that states “Subscribed and sworn to before me…” – subscribed meaning “signed” and sworn meaning that an oral oath or affirmation was given. “Before me” means that both were done in the presence of the notary public.
In Acknowledgements however, acknowledgement portion is used to verify the identity of the signer and to confirm that they signed the document. They are not swearing to the truthfulness or validity of the document, they are simply acknowledging that they signed the document.
An acknowledgment certificate indicates that the signer:
1. personally appeared before the Notary,
2. was identified by the Notary, and
3. acknowledged to the Notary that the document was freely signed.
Acknowledgments do not need to be signed in the notary’s presence although it would be highly preferred whenever possible. For this matter I think the confusion lies from the fact that the signer must appear before the Notary at the time of notarization to acknowledge that he or she freely signed for the purposes stated in the document.
But take note of this, documents requiring a Jurat must be signed in the Notary’s presence, as dictated by the typical jurat wording, “Subscribed (signed) and sworn to before me…” okay? So in theory, it is imperative that it is the executor who was presenting the document to the notary. But in practice, sometimes if not, then must be duly identified.
In executing a Jurat, a notary guarantees that the signer:
1. personally appeared before the notary,
2. was given an oath or affirmation by the notary, and finally
3. signed in the Notary Public’s presence.
To summarize, the key difference between a JURAT vs ACKNOWLEDGMENT is that the former (Jurat) is used primarily when dealing with sworn statements and the latter (Acknowledgment) typically applies to documents that must be signed in front of an unbiased independent witness.
