Can you notarise a document I need to sign without seeing me sign it?
For some people taking the time to sign a document before a notary, and the formalities that go with it, is at best an inconvenience. A good solution for a client is to sign the document (not in front of the notary), provide it to the notary with evidence of identity and ask the notary to notarise it. From the client’s point of view the notary has all the essential information to get on with things.
While this is a common sense and timesaving approach it is unlikely to work in most cases. This is for a number of reasons:
- in many other countries, where a notary is required, there are usually two essential factors to get a document notarised where a client needs to sign it:
- a client will always appear before the notary; and
- the client must always sign in front of the notary
- that the aim of an English notary is to work to the same standard of notaries in other countries
- the guidance given notaries is that:
- a notary should only notarise a document not signed in the notary’s presence in very limited circumstances; and
- a notary should be very cautious as to whether to agree ever to do so; and
- a notary should carry out a set of extra checks before notarising a document not signed in the notary’s presence; and
- the notary should pay particular regard to the Money Laundering Regulations 2007; and
- a notary should never whether explicitly or by implication, give an impression or make a statement that a document has been signed in the presence of the notary when it has not; and
- should be clear as to what s/he is verifying and not verifying (so not mislead anyone who is relying on the notarised document); and
- nowadays it is very easy to forge documents
Some countries when a document not signed in front of a notary is unlikely to be ever acceptable
For some countries:
- a document which is not signed before a notary (where it needs to be); but
- which is not signed before a notary but provided to the notary already signed
is unlikely to be ever acceptable.
These countries are generally central European countries (such as Germany, France, Italy and Spain, as well countries whose law is based on those countries’ legal system (such as much of Latin America, Austria and Switzerland)).
One important country where signing a document before a notary is actually required
Many documents that a notary needs to deal with from the United States of America, do not need to be signed in front of a notary but they need to be ‘acknowledged’. Essentially, the person who has to sign needs to state that they have signed the document of their own free will.
Will I as a notary ever notarise document signed by you but you have not signed before me?
Given what is written above, I am prepared to notarise a document not signed in my presence only in very limited circumstances. I will make it clear on the notarised document:
- that the signed document has been provided to me already signed;
- that I did not see the person sign it (i.e. that was no personal appearance by the client); and
- that the signature on the document appears to match that of a signature made on another document which I have kept; and
- say no more.
Other factors keys which will affect whether I notarise a document not signed in my presence
- I know the client well (that means I have notarised documents for the client for an extended period in the past, and there has been no significant changes in the client’s identification or circumstances); and
- I have recently identified the client (or re-identified them); and
- that the client cannot sign the document because of a family or other similar emergency which needs to be dealt with immediately and without any time for the client to make alternative arrangements (i.e. it is not merely inconvenient or difficult to sign);
- the document relates to a matter which is of a routine nature and does not involve such things as:
- a client authorising someone to make substantial payments on your behalf or you providing instructions for the payment of sums to other persons or organisations;
- a client agreeing to the sale, purchase or transfer of anything of value (such as a house or flat or a business or any other significant business asset) or anything relating to such an transaction;
- where the matter for which the document is needed is subject to some dispute or litigation;
- the client authorising or agreeing to anything which substantially affects the client’s legal rights or obligations (or anyone else)
If you simply cannot get to a notary but need to have a document notarised, what to do?
In my experience it is rare that a person is faced with a circumstance which means that they cannot get to a notary at all because of a sudden emergency, and there is a deadline which is impossible to re-arrange . Much more common is that a person has to have a document notarised (and particularly legalised), but the time the person has to do all of this is not enough.
However, sometimes a person simply cannot see a notary at all to sign a document. Where this occurs, there are several ways of dealing with this:
- inform the recipient of the document that the document cannot be signed immediately or in the near future. Often the recipient of a notarised document may have set a deadline which is for their convenience or is just their standard deadline, and may be extendable;
- if the person needing to sign is going to another place, country, then rather signing the document here, have it notarised in that other country;
Guidance etc issued to notaries
What follows are selected extracts from the guidance and standards a notary is expected to meet in a book (The General Notary) issued by the Notaries Society (the representative body of notaries in England and Wales ). Also below is an opinion issued by the Council of the Notaries Society as to when it is possible to deal with documents not signed in the presence of a notary. All this material is copyright of the Notaries Society.
Although none of this binding on a notary in the same way as an Act of Parliament or other forms of a notary, these documents are the only sources of information available as to the standards that a notary should meet.
Whether a person needing to sign a document needs to appear personally before a notary
7.10 Personal appearance
There have been many discussions surrounding the issue of whether or not there has to be an actual personal appearance of the parties before the notary before the notary can properly perform any notarial act. The conventional view of the civil law notaries is that personal appearance is, in every case, an essential element. There can be no doubt that there must be a personal appearance wherever the act is in public form. The best opinion is that there should be a personal appearance in every case. Further the notarial act must never give the impression, explicitly or implicitly, that there has been an appearance where this is not the case. These principles apply to every form of notarial act, but the problem arises most frequently in the case of the attestation of signatures.
Issues with dealing with a document not signed in the presence of a notary
Authentication of signature only
7.31 Authentication of signature only If there must be a situation where the notary is not himself directly a witness to the signature of the party to the document he is, by definition, not a part of the process of attestation. At the most he can only certify that the signature is that of the signer, and such a certificate is fraught with danger.
There are circumstances in which the notary may have no better alternative than to certify that a signature is to his own knowledge the signature of an identified person. It should be made clear here that it is unwise for the notary directly to certify that the signature and attestation were conducted in any particular fashion, or in accordance with English Law, or in accordance with the requirements of the foreign jurisdiction, if he was not himself present to see that all was done in proper form. There are practical solutions for the notary who is asked to certify such matters without being present, but they will not absolve him from the responsibility which he undertakes if he lends his authority to evidence something which he has not actually been able to verify for himself. If the notary accepts instructions to act in such a matter he should have regard to the Opinion of the Council of The Notaries Society, Certifying Unattested Signatures, dated 20 January 2009 (available to members in the Members Section of the Society’s Website) and must adhere to the minimum standards there set out. The notary must of course also have regard to the requirements of the money laundering regulations.
In the case of the authentication only of a signature a notary must be aware of the possibility that the receiving jurisdiction may by implication be taking the authentication to mean more, or at least that there has been full identification, and possibly even that the document is binding in English law. If there is personal appearance but the signature has already been made the notary can properly make an acknowledgement in the American form. More generally he can ask the appearer to confirm the signature and sign again. Later certification of a signature cannot however be done safely if the signature has already been witnessed by others, as the notary would not be able to verify the act of witnessing or the signature of the witness.
Notarial authentication of the signature to or execution of documents is thus not as simple as may be supposed.
Opinion of the Council of the Notaries Society on how to deal with documents not signed in the presence of a notary
"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:
- 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;
- The Notary should check the continued existence of the signatory regularly;
- If the signatory is a representative of an organisation or company his continued authority should be checked regularly;
- 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;
- 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;
- 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.
- 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".
The dangers of fraud, impersonation etc
Computer technology makes it extremely easy to forge documents. To take a simple example:
- a criminal hacks into the email account of a client of mine;
- the client has emails to and from me which relate to the purchase of a property in another country;
- the criminal also discovers copies of documents which include the real signature of the client;
- the criminal creates a document authorising a third party to arrange for the transfer of the property from the client to the criminal;
- the criminal using tools included with a computer’s’ operating system to copy an image of the signature on the document to make it appear that it was signed by the client;
- the criminal sends an email from the hacked email account to me which appears to be from the client stating that the client has an family emergency, has had to fly immediately to another country, and it is unlikely to be able to speak to me on the telephone or contact by email in the next few days but I asks whether I could notarise the attached copy of the document which the client has signed. And it is now very urgent that it is notarised straightaway.
Other examples need not involve a criminal hacker, but could involve be a relative, partner or someone else who gains access to the client’s records or documents.
In such circumstances, I may never speak or otherwise communicate with the client other than email, but I would, if I deal with the document the client purportedly sent to me, I would be facilitating a criminal activity and money laundering as well as committing criminal acts myself.
‘Appear’ can mean here that the client comes to the notary or the notary goes to the client. ↩
The effect of which, and the time taken by the client to deal with the checks, is likely to equate to the time taken to sign the document in the presence of the notary. ↩
This might imply that it is enough that the notary has seen a client sign once before in order for the notary on a future occasion be able to deal with a document not signed in the notaries presence. This is not my view and this paragraph needs to be read, in my opinion as one of the conditions (all of which must be fulfilled) before the notary can deal with a document not signed in her/his presence. ↩