1. General Information
Responsibility for admission and registration of notaries lies with the Council of The Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Petitions to the Court of Session for admission as a solicitor normally include an application for admission as a notary public. Prior to 1 November 2007 any solicitor on the roll of solicitors had the right to act as a notary. With effect from 1 November 2007 only solicitors holding a current practising certificate issued by The Law Society of Scotland have the right to act as a notary. See Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) Section 62. Accordingly most but not all solicitors are notaries public.
The Law Society of Scotland is a member of the United Kingdom Notarial Forum.
Current Notarial Functions
Oaths Affidavits and Affirmations.
The Solicitors (Scotland) Act 1980 provides that these may be signed before a notary public. Such deeds should not relate to any matter in respect of the preservation of the peace, prosecutions, trial or punishment of an offence, or any proceedings before either house of Parliament or any committee thereof.
Affidavits under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
This role is changed by the Civil Partnerships Act 2004 and the Family Law (Scotland) Act 2006.
Documents for use in foreign jurisdictions often require execution before a notary. Care should be taken to ensure that you have your authority registered with the Foreign and Commonwealth Office before executing such documents.
Protests in maritime matters.
Protests for example against poor wind and weather conditions by a sea captain on arrival in port are signed before a notary public.
Signature on behalf of persons who are blind or unable to write. See the Requirements of Writing (Scotland) Act 1995.
Other functions include notarising entry of a person to overseas territories, notarising documents in connection with formation of overseas companies and drawing for repayment of bonds of debenture.
When acting as a notary the following points should be addressed.
Is a notary required?
If so in what capacity?
Do you clearly understand the procedures in this particular case?
Are you disqualified in any way?
Is the matter governed by the jurisdiction where the document originated?
Is the matter governed by the jurisdiction where the notarial act as to take place?
A notary acting in Scotland on a Scottish matter presents no problem.
A notary acting in Scotland in a non Scottish matter requires care to ensure that there is no prohibition in the foreign jurisdiction on the Scottish notary acting.
A notary acting outwith Scotland in a Scottish matter. Generally notaries should defer to local notaries. See the Public Notaries Act 1801
A notary acting outwith Scotland in a non Scottish matter. Generally a notary should not act.
Identity of the deponent
Proof of identity consistent with money-laundering standards should be seen and recorded. Often documents require the incorporation of a declaration by the notary that he/she is satisfied as to identity.
The deponent understands the document
It is essential the notary is satisfied on this point. Short documents should be read over and the deponent should be invited to formally acknowledge that they have read and understand the document. Unless the notary is fluent documents in foreign languages must be accompanied by a certified translation.
Some documents do not require administration of an oath. Where documents do require administration of an oath the deponent must be sworn. Although not strictly necessary it is good practice to have the deponent raise their right hand and repeat some form of words along the lines "I swear by Almighty God that the contents of this document are true." The phraseology should be varied to take account of persons of other religions. For those who do not wish to take a religious oath the words "solemnly and sincerely affirm" may be substituted for "swear by Almighty God". There is authority for the proposition that where this oath is not actually formally sworn the document is void (Blair v North British Mercantile Insurance Company 1889 16 R 325)
This depends on the jurisdiction and the type of deed. In some jurisdictions the notary and deponent require to sign on every page including schedules and annexations. If in doubt this is safe practice. It is essential that the document is executed in the presence of the notary and both signatures are applied contemporaneously. It has been held to be professional misconduct for a notary to send a document for signature by a client and subsequently apply the notarial signature.
Alterations should be initialled by both parties. Notaries should add the words "notary public" after their signature. If they are not fully designed in the body of the document a full designation is good practice. The application of the notarial seal is not necessary for Scottish purposes but may be necessary in other jurisdictions.
Certain documents for use abroad require a signature and notarial seal and to be "legalised" (authenticated) by the Foreign and Commonwealth office in London. See the Hague Convention on legalisation of foreign documents. Notaries should register their signature and seal with the Foreign and Commonwealth Office for this purpose. Thereafter notarised documents can be sent to the Foreign and Commonwealth Office Legalisation Office for the application of the Apostille together with payment of the relevant fee.
Subscription on behalf of grantors who are blind or unable to write
See the Requirements of Writing (Scotland) Act 1995 Ss 9(3) 9(4) 9(7) and Schedule 3.
Cases where a notary cannot act - normal conflict rules and guidance apply.
See Gorries Trustees v Stivens Executrices 1952 SLT 54 where a notarially executed will was void because the notary's partner was appointed trustee with power to charge fees.
See the Requirements of Writing (Scotland) Act 1995 s9(4) which provides that 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 invalid only to the extent that it confers such benefit.