Jose Gabucan vs Judge Luis Manta

written by Howard
  • A notarial will must have a documentary stamp
  • Without a documentary stamp, it is not admissible in evidence in a probate proceeding
  • At any rate, the documentary stamp may be affixed at the time the taxable document is presented in evidence, not necessarily at the execution of the will

G.R. No. L-51546 – 180 Phil. 588 – 95 SCRA 751 – Remedial Law – Special Proceedings – Probate of Will – Documentary Stamp on Notarial Will

In 1977, Judge Luis Manta dismissed a probate proceeding because the notarial will presented in the said case lacked a documentary stamp. Judge Manta ruled that the lack of of documentary stamp made the will inadmissible in evidence and as such there is no will and testament to probate.

Jose Gabucan, a party in the said case, thereafter affixed the required documentary stamp and then moved for reconsideration but the judge refused to reconsider his ruling. Hence, Gabucan filed a petition for mandamus to compel the judge to admit the notarial will.

ISSUE: Whether or not a notarial will presented in court which originally has no documentary stamp may still be admitted after the required documentary stamp was affixed.

HELD: Yes. It is true that the law (the [old] Tax Code – now Sec. 201 of R.A. 8424) requires a notarial will to have a documentary stamp:

SEC. 238. Effect of failure to stamp taxable document. – An instrument, document, or paper which is required by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. xxx

Thus, a notarial will without a documentary stamp may not be admitted in evidence. However, once the said documentary stamp is affixed, then the deficiency is cured and it can now be admitted in evidence. The documentary stamp may be affixed at the time the taxable document is presented in evidence.

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