Notarizing Documents of Deceased Persons: A Lawyer's Notarial Duty and Its Consequences

The Supreme Court has long emphasized that notarization is not a meaningless ritual. It is a solemn act invested with substantial public interest. When a lawyer fails to verify the identity of a person appearing before him and notarizes documents signed by someone who has been dead for decades, the consequences are severe: suspension from the practice of law, revocation of the notarial commission, and disqualification from being commissioned again. The case of Magaway v. Avecilla (A.C. No. 7072, July 27, 2016) illustrates these consequences clearly.

The Facts of the Case

The complainants, heirs of the late Gavino Magaway, sought the disbarment of Atty. Mariano A. Avecilla. They alleged that the lawyer had prepared, notarized, and manipulated a falsified Deed of Sale dated December 7, 1993, and an Affidavit of Non-Tenancy of the same date. The problem? The supposed signatory, Elena Gongon, had died on May 11, 1966 — twenty-seven years before the documents were executed. Gavino Magaway, who supposedly signed related documents, had died even earlier, on December 3, 1963.

The lawyer admitted notarizing the documents but claimed that an impostor appeared before him. He said he acted "out of pity and kindness" for an elderly woman who affixed her thumbprint on documents she brought to his office.

The Issue

The central issue was whether the respondent lawyer should be held administratively liable for notarizing documents executed by persons who were already dead, without verifying the identity of the persons appearing before him.

The Ruling

The Supreme Court adopted the findings of the Integrated Bar of the Philippines (IBP) and ruled against the lawyer. The Court held that by affixing his notarial seal and signature on the documents, the lawyer transformed them from private into public documents. This made them admissible in court without further proof of authenticity, because the certificate of acknowledgment constituted prima facie evidence of their execution.

By notarizing the documents, the lawyer proclaimed to the world that:

• All parties executing the documents personally appeared before him;
• They were personally known to him;
• They were the same persons who executed the instruments;
• He inquired into the voluntariness of the execution; and
• They acknowledged before him that they executed the documents voluntarily and freely.

None of these were true. The lawyer's failure to ascertain the identity of the person executing the documents constituted gross negligence in the performance of his duties as a notary public.

The Duty of a Notary Public

The Court reiterated that the function of a notary public is to guard against illegal or immoral arrangements in the execution of public documents. A lawyer commissioned as a notary public is mandated to discharge these duties with faithful observance and utmost respect for the legal solemnity of an oath.

This responsibility flows from the Lawyer's Oath, which binds every lawyer to "do no falsehood or consent to the doing of any." It is also reinforced by the Code of Professional Responsibility, which prohibits lawyers from engaging in unlawful, dishonest, immoral, or deceitful conduct.

The Court's Warning

The Court rejected the lawyer's defense that no one was prejudiced by the notarization. The notarized documents adversely affected the rights of the complainants and other parties with existing interests in the property.

The Court stressed that notarization is not an empty, perfunctory, or meaningless act. Courts, public offices, and the public at large rely upon the recitals in an acknowledgment. When a notary public fails to observe the basic requirements of the duty, the confidence of the public in the integrity of notarized documents is undermined.

The Penalties Imposed

The Court imposed the following penalties on the respondent lawyer:

1. Revocation of his notarial commission, effective immediately;
2. Disqualification from reappointment as Notary Public for a period of two years;
3. Suspension from the practice of law for a period of one year; and
4. A warning that repetition of the same or similar acts shall be dealt with more severely.

Practical Takeaways

• Notarization is a public trust. A notary public must verify the identity of every person appearing before him. This is not a mere formality — it is the core of the notarial function.
• Never notarize documents for deceased persons. If a document is presented for notarization and the signatory is purportedly someone who has long passed away, the lawyer must make reasonable inquiries. Failure to do so is gross negligence.
• "Out of pity" is not a defense. Acting out of kindness does not excuse a lawyer from observing the mandatory protocols of notarization.
• The penalties are cumulative. A lawyer may face suspension from practice, revocation of the notarial commission, and disqualification from future commissions — all at the same time.
• The Lawyer's Oath has real teeth. The duty to "do no falsehood" applies with full force to notarial acts. Violations carry serious administrative consequences.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.