People do ask – what is the difference between a Notary and a Solicitor? [a -Training and Exams]– Why must this document for use abroad be made by a Notary? [a -Because Foreign Law says so]
The situation in England is further complicated in people’s minds by the fact that there are few if any Notaries who are not or have not also been Solicitors. So what difference does it make which hat they have on?
One of the most fundamental differences, is the mental attitude which is brought to bear.
When S/he is a Solicitor, Mr/s NP will approach your documents with the aim of ensuring that they achieve your purpose. S/He is acting for you and for your best interests. Whilst s/he will not lie for you, s/he will keep your secrets and release information only after you have authorised doing so. If there are aspects to your documents which are very much to your advantage, and which s/he reasonably suspects are aspects which “the other side” may not have noticed, s/he will not point out any bear traps to them.
When S/he is a Notary, Mr/s NP should not act for you if s/he is also your solicitor.
When S/he is a Notary, Mr/s NP is acting for “the Transaction” regardless of who is actually paying the fees.
That means – not giving advice to anyone. Checking that the person in my room tells me that they fully understand the significance of the paper they wish to sign and has taken all legal advice they consider necessary.
Then the Notary will give a certificate without regard to the interest of anyone or anything other than the truth.
An example from my mailbag is an enquiry from a Notary who asks what should be done in this case:-
“The Managing Director of a large Public Limited Company has made a Statutory Declaration relating to setting up an overseas company before me yesterday. The content is the document was typed in by his staff. Now it transpires there was a small* typo –an error in his Date of Birth. His secretary is quaking (apparently God answers to this Managing Director rather than the usual arrangement) and as he has flown to USA this morning he cannot simply make a fresh Declaration today. They want to know if they can hand-amend the Date of Birth, having checked with the receiving party that would be acceptable to them. My strict view is that if – as he has – the declarant has declared the information contained in the Declaration to be “true, accurate and complete” then no amendment should be made. Am I correct?”
*NB “small” – his words, not mine!
Now wearing the Solicitor’s hat you might think this is an answer:-
“If, as I assume would be the case,
1. You would have been happy to simply add your initials (together with those of the declarant) to a correction, by hand, to the date, at time of its declaration and
2. The recipient is happy to accept the correction with the initials of the declarant alone, then I really don’t see a problem, as long as you obtain a copy of the final version for your own records.
And – Why re-date it? If I understand you correctly, the MD is in the US, with the Stat Dec (dated yesterday), and the recipient will be happy with the manuscript amendment being initialled by the Declarant alone. What’s the problem?”
As a Notary however, my reply must be:-
It is your sad duty to explain to him that, he having made a false statutory declaration, he must now serve a prison sentence.
No exceptions, not even for God’s boss, who is too important to read the words of his own Declaration.
Or, less flippantly,
Why can a new Statutory Declaration not be made in USA? There are Notaries in every coffeehouse, very reasonable fees.
AND the problem is that the date is now different, all that happened yesterday, and today God’s boss is in the States and cannot initial the amendment nor its re-dating.
BECAUSE – the inconvenience of the situation is neither here nor there to the Notarial mindset. All that matters is the truth of the transaction and the paperwork surrounding it,
And BECAUSE A statutory declaration is an oral statement made in front of a Notary. The fact of the oral statement is documented on paper. Therefore, no change to the paper can alter what was declared orally in my room; alteration can only provide a false documentation of the oral declaration.
If a man has made a statutory declaration in my presence, he has averred something to be true and has accepted that if he speaks falsely then he is in peril of jail for perjury.
If he later sees that because of carelessness, the statement contains a falsehood such as an incorrect date of birth then the way to correct this is to destroy the false document and make a new true one.
And certainly, if he instead chooses to make and initial an amendment to the false one then that is nothing to do with the Notary and I certainly don’t want him to tell me about it.
He cannot expect me to replace my protocol copy of what actually took place, with a copy of his defaced – he would say corrected – original, which now appears to document a declaration which in fact never took place.
I mean – if I gave him a fiver in his change, he can cross out £5 and write £10 and initial it if he wants. Nothing to do with me though is it?
There is no place in notarial work for the somewhat solicitorial perception that the correct thing is to do “what is needed to get the job done”, acting from the point of view of the “client”.
Maybe I was never cut out to be a Solicitor. When I was one, some years ago, I once was asked by a client to give advice after he discovered that he had bought a plot of land which did not have the rights of way he thought it had. And he thought it had, because he had not read the paperwork and had refused to let me “waste time and increase the bill” by explaining everything to him before he went ahead with the purchase.
My advice to him was that he “should now live with the consequences of his mistake”.
That went down well.
Hey ho, it’s Christmas, goodwill to all etc. So here –Link Here – is a splendid song: Have a Happy Christmas and New Year.
I will blog again in 2018.
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