It might surprise you that often I am asked to assist in a case where an urgent document -which needs to be “witnessed by a Notary Public”, has in fact already been signed. “Can you witness a document please; Mr Jones signed it last night!”
Usually there is nothing sinister about this – typically it is just a matter of someone being very busy.
Imagine a Company Director, who has flown in from Brazil late on a Saturday night and dealt with his paperwork in his office overnight then caught the early morning plane to South Africa on Sunday. With no time to arrange a Notary to attend to witness his signature, he leaves the signed paper on his desk and asks his colleagues to “get it notarised” the following week.
Clearly the word “witness” has a dictionary meaning – I witness what I see. I cannot be a witness, if I didn’t see.
Some legal papers – particularly those called DEEDS and also of course WILLS – are defined by Statute Law as required to be signed in the presence of appropriate witnesses. If they are not witnessed, they are in-valid. If my imaginary Businessman has left a document like that to be dealt with then of course I cannot assist.
However it may sometimes be that the document does not require a witness as a matter of legal validity; but merely that some person or Authority abroad needs to be satisfied that the document was properly signed by the right person.
For example, a letter from a Company Director, confirming to a customer abroad that Fred Bloggs is a properly appointed employee of the Company authorised to take orders for company products, does not need to be a deed. It does not need to be witnessed, even though the foreign customer may require that it be Notarised. In such a case, I can often assist. If I know the signature of my client and already have copies of it on other papers in my records, if he emails me to confirm that he did indeed sign the letter, then I can add a Notarial Authentication.
In such a case my Certificate might say that – “As a Notary Public well aware of the signature of Mr Jones I have carefully considered the signature above which was made in my absence and I hereby confirm it to be the genuine signature of the said Mr Jones”.
This makes it clear that I was not a witness, but nevertheless I certify that Mr Jones made the signature.
This arises so often, that the Council of the Notaries Society, has given written guidance which I set out below
THE NOTARIES SOCIETY
AN OPINION OF THE COUNCIL
CERTIFYING UNATTESTED SIGNATURES
A Notary may properly witness a signature only if it is signed in his presence . Similarly he may authenticate the due execution of a document only if it is executed in his physical presence. Occasionally a notary may be asked to verify that a signature is genuine, even though he was not present when the signing took place.
If he accepts such instructions then he must adhere to the following minimum standards:
1. On a prior occasion the Notary must have first seen the signatory affix his signature to a form which is retained in the protocol file of the Notary;
2. The Notary should check the continued existence of the signatory regularly;
3. If the signatory is a representative of an organisation or company his continued authority should be checked regularly;
4. The Notary should at the time of verifying the signature take such steps as are reasonable to ensure that the signatory has in fact signed the particular document;
5. The certificate must be unequivocal and must not state or imply that the signature has been affixed in the presence of the Notary or that the document has been properly executed;
6. The Notary must refuse to certify the unattested signature if full attestation by a notary is required to complete the formal requirements for the proper execution of the document.
7. The Companies Act 2006 allows the execution of Deeds on behalf of a Company by the signature of one Director in the presence of a witness who attests his signature. Notaries must be aware of the risks involved, and specifically state that they are not attesting a signature which was not affixed in their presence, so as to avoid an accidental attestation which would give the document an authenticity and validity which it does not deserve. But it would be possible to attach a notarial certificate to a document on which the director’s signature had already been witnessed, provided that all of the above safeguards were followed.
Notaries must be aware of the risks of issuing such certificates and should, if in any doubt at all, decline to act.
It is the opinion of the Council of The Notaries Society that there can be no professional objection to a Notary certifying the fact that the signature on a document is that of a signatory known to him provided that the Notary follows the foregoing procedure.
Dated this 20th day of January 2009
Thomas A Hoyle
President The Notaries Society
By authority of the Council
© The Notaries Society