The first matter a notary must undertake is to satisfy himself or herself as to the function required.
- Is it a function which requires a notary or can it be done as a solicitor?
- What are the requirements of the notary to fulfil this function?
- If it is the authentication of a document abroad, is the notary satisfied that he or she knows the formalities required?
- Does the document require that the deponent is sworn before signing? Is there anything which would disqualify the notary from acting?
These may seem trite but are worth considering at the outset.
A notary should only act where he or she has in force a practising certificate granted by the Law Society of Scotland.
There is generally no problem with a Scottish notary public exercising notarial functions in Scotland in respect of documents to be used either in Scotland or abroad, but caution is required for foreign documents. The question also arises whether a Scottish notary public outwith Scotland can, or should, act as a notary. The legal position is not straightforward and three factors have to be considered before acting -
a). the law of the jurisdiction where the document originated
b). the law of the jurisdiction where the document is to be notarised
c). the law of the jurisdiction where the notarised document is to be used
- A notary acting in Scotland in a Scottish matter - this presents no problems.
- A notary acting in Scotland in a non-Scottish matter - Generally there will be no problem, but this will depend on the foreign jurisdiction. For example, the law of a foreign jurisdiction may dictate that only notaries qualified in that jurisdiction may act.
- A notary acting outwith Scotland in a Scottish matter - Generally there will be no problem, but this will depend on the jurisdiction where the notary is situated. For example, a Scottish notary in London should not act but defer to the local notaries. This is both good practice to maintain good relations between notaries of different jurisdictions and to respect the law in the Public Notaries Act 1801 and the Legal Services Act 2007.
Under the Public Notaries Act 1801 as amended, Section 1, “No Person in England shall be created to act as a public notary unless such person has been admitted as a notary in England and Wales”. If Scottish notaries exercise the office of notary public in England and Wales in respect of documents to be used in England and Wales, they will be null and void: See Weston v Gribben and Foreign and Commonwealth Office  EWCA Civil 425
• A notary acting outwith Scotland in a non-Scottish matter - Generally, a notary should not act.
Identity of the deponent
it is essential that the notary must be satisfied as to the identity of the deponent. If the deponent is unknown to the notary, the notary should ask for proof of identity, e.g. passport, medical card, etc. Certain forms of affidavits incorporate a docquet to this effect and it may be prudent to have such a docquet where the affidavit is for use outwith Scotland. This should be worded “I satisfied myself as to the identity of the Deponent by [personal acquaintance] [examination of his/her passport No. ABC123]”
The deponent understands the document
It is essential that the notary is satisfied that the deponent understands what he or she is signing. If the document is short, it is prudent to read over the document to the deponent and ask if he or she understands what is written. Strictly speaking this is not necessary, but if the document is lengthy the notary must endeavour to paraphrase or summarise the contents before signature. If the document is in a foreign language, unless the deponent is fluent in that language, there must be a translation. The notary should ensure that the translator provides a statement signed in the notary’s presence stating that the document is a true translation.
Administration of an oath
This is an area where notaries frequently either do not know how they should proceed or do not proceed correctly. There is a distinction between documents for which there is a requirement that the deponent must be solemnly sworn and those for which there is not. If a document does not require an oath, a notary need only establish that the deponent understands that the document is a formal one and the deponent is acknowledging that the contents are true by signing in front of the notary. On the other hand, if a document requires that the deponent has been sworn before signing, that is what should happen.
To take an example - a document may be worded along the lines that the deponent appearing before the notary “being solemnly sworn and examined, depones ....”. This means that as in all cases requiring an oath, the deponent must be sworn. What exactly does this mean?
It is appropriate for the deponent to stand up and raise his or her right hand, so that the solemnity of the oath is respected. It is necessary for the deponent to repeat when asked by the notary some form of words along the lines “I swear by Almighty God that the contents of this affidavit are true”. It is the words “swear by Almighty God” which constitute the solemn oath.
Persons of non-Christian religions strictly speaking should swear according to their religious practice. The notary has, however, to be satisfied about the appropriate form of oath.
For those who do not wish to take a religious oath, an affirmation can be substituted. In this case, the words “solemnly and sincerely affirm” are substituted for “swear by Almighty God”.
It is appreciated that a notary may find the need to ask a client to swear somewhat embarrassing, but that element is an essential part of the Notarial function. It has the advantage of marking out the solemnity of the proceedings. There is authority for the proposition that where an oath is not administered when required, the document is void (Blair -v- North British Mercantile Insurance Company (1889) 16 R 325).
What is actually signed by the deponent and the notary depends on (a) the jurisdiction for which the deed is intended and (b) the type of deed. So far as the jurisdiction is concerned, it may dictate the requirements, e.g. signature by both deponent and the notary on each page. If in doubt, it can do no harm to have every page, or at least every sheet, signed by both. Unnecessary signatures can be ignored, but missing signatures can invalidate.
In Scotland the type of deed will dictate what is required. For instance, an undefended Divorce Affidavit is signed on each page as a matter of practice. Generally speaking the provisions of the Requirements of Writing (Scotland) Act 1995 should be followed.
It is absolutely essential that any document which has to be executed in the presence of a notary is signed by the deponent in the presence of the notary or, if the document has been signed in advance, that the signature is acknowledged by the deponent. In the latter situation it is preferable to have the document signed again by the deponent. It should be remembered that it is professional misconduct for a notary to send a document for signature and for the notary to “notarise” that signature without having seen the deponent sign or having that signature acknowledged. (See for example Law Society of Scotland v James Buchanan Donald, Scottish Solicitors Discipline Tribunal, 6 May 2008).
- What about annexations and alterations? - Alterations should only be made before signature and initialled by both deponent and notary. Alterations made after signature should be signed again by both deponent and notary. Annexations should normally be signed by both. Again, the provisions of the 1995 Act should be followed.
- What should the notary sign? - Apart from his signature the notary should add the words “notary public”. If, as is likely, the notary is being designed in the document there is no need for anything else but if not, the place of business, e.g. Forfar, should be added at least and it is better to have a full designation. In some affidavits for use outside Scotland it is necessary to have the date and place of birth of the notary.
- What about the notary’s Seal? - In Scotland a seal is not required as part of the execution by a notary. However, seals with various mottos (which incidentally need not be in Latin) are often retained either for display or use as paperweights. For foreign documents, however, it is good practice to append the seal to the notary’s signature. The more formal the appearance the better is the view in many jurisdictions and the lack of a seal may be a problem in relation to a document presented abroad.
- What are Apostilles? – This refers to documents for use abroad which require a signature and seal of the notary to be “legalised” (i.e. authenticated) by the Foreign and Commonwealth Office in Milton Keynes. This covers countries which are parties to the Hague Convention on Legalisation of Foreign Documents. In such cases the Foreign and Commonwealth Office adds a certificate called an Apostille to the documents. Notaries can apply to have their signature and seal so authenticated by the Foreign and Commonwealth Office to ensure an Apostille is available when required.
The current address is Legalisation Office, Foreign and Commonwealth Office, Hanslope Park, Hanslope, MILTON KEYNES, MK19 7BH. Tel: 0370 000 2244 (between 10 a.m. & 12 Noon and 2 & 3 p.m.) –– E-mail: LegalisationOffice@fco.gov.uk
The Requirements of Writing (Scotland) Act 1995, (S.9) altered the procedure for what is commonly, but now erroneously, known as notarial execution. As with the pre-1995 procedure “the relevant person” which includes a notary can execute documents for persons who are blind or unable to write. It should be noted that under the Act, a disabled person is not obliged to execute in this way and can sign personally (Ss. 7(2) and 9(7)). It should also be noted that the execution can be with or without a witness and if witnessed the document will be self-evidencing under S.3.
The procedure to be adopted, as set out in S. 9(3) and Schedule 3 is as follows. At the outset the granter declares that he or she is blind or unable to write. The notary either reads the document to the granter or the granter declares that he or she does not wish this. If there is a plan, this must be described to the granter or again the granter can declare that he or she does not wish this. The granter authorises the notary to subscribe. The notary subscribes. If the document is a Will the notary subscribes every sheet. If there is a witness, the witness also signs. The execution must take place in the presence of the witness who should sign the document immediately. There is no need for a holograph document as previously required. The document or testing clause must state a) that the document was read to the granter or that the granter indicated that he or she did not want to read and (b) that the granter authorised the notary to sign. It is not necessary for the testing clause to be added immediately.
Another welcome change is that under S. 9(4) a document signed by a notary or other relevant person which confers a monetary benefit on that person or his or her spouse, son or daughter, is only invalid to the extent that it confers such benefit. The Society recommends that if the document to be signed is a will naming a solicitor as executor with the right to charge professional fees, the execution should be done by a solicitor in a different firm (see instances where a notary cannot act).
As all notaries in Scotland are also solicitors, the professional rules prohibiting acting in certain situations, e.g. where there is a conflict of interest, apply to notaries.
In the particular case of notarial execution, there is a rule that the notary should be independent and not have a disqualifying interest. This rule is strictly applied (e.g. Gorrie’s Trustees -v- Stiven’s Executrices 1952 SLT 54 where the notarially executed Will was void because a notary’s partner was appointed a trustee with power to charge fees for acting professionally as solicitor). However, since 1995 as already noted, where a document confers on the relevant person or his or her spouse, son or daughter “a benefit in money or money’s worth (whether directly or indirectly)” it is only invalid to the extent that it confers such benefits.
The meaning of the words “benefit in money or money’s worth” is not defined in the Act and, therefore, it remains necessary to have an independent and disinterested notary. In a Will, an entitlement to charge fees or share in fees will still be struck at, although the remainder of the Will stands.
If there is more than one party to a Deed who is blind or unable to write, it remains good practice to have an independent and disinterested notary for each.