Notary Sydney – Witnesses

When do I need a witness?

As a general rule, witnesses need to be present at the execution of certain legally binding documents, such as:

  • Property deeds;
  • Trust deeds;
  • Affidavits;
  • Power of attorney instruments;
  • Financial agreements between partners; and
  • Contracts.

Using a witness to witness a document is one of the most common methods used to identify the signatory and testify to the validity of the signature to safeguard against forgery and fraud.  After sighting the signature, witnesses typically need to sign on the same document as proof that the document has been properly executed.

Who can be my witness?

As a short answer to the question, a notary can act as a witness.  However, a notary acting as a witness cannot then proceed to notarize the notary’s own signature.

Broadly speaking, there are certain restrictions imposed upon the selection of witnesses that a notary should keep in mind when performing a notary act, namely the witness must be:

  • A neutral third party who has no interest in the outcome of the matter and will not benefit from the document being executed;
  • At least eighteen years of age;
  • Of sound mind; and
  • Able to identify the signatory either by personal knowledge or by evidence produced to verify the signatory’s identity.

Sydney Notarial Services – Copy Certification

When a Notary Public certifies a copy of an original document the copy is known as a certified copy.  All this means, is that the copy is a true copy of the original document.  It should be noted, that this does not constitute an ‘authentication’ of the original document or of the copy itself.

It is a common misconception in jurisdictions outside Australia that when a Notary Public certifies a copy of a document of the document that they are also certifying the content and authenticity of the original document.  As such, it is often necessary for Notary Publics to amend their notarial certificate to reflect and emphasize the fact that the Notary Public is only certifying that the copy is a true copy of the original document and that they are not authenticating the truth of the contents of the document.

However, a Notary Public may be asked to undertake investigations into the authenticity of original document/s.  In such circumstances, a Notary Public should always limit their investigation to what they know or are satisfied that they can prove.

  1. Sydney Notary Services – Proof of Identity by Credible Witnesses

Verifying the identity of an individual through the oath of a credible witnesses can be traced back to ancient Rome and remains a method for proving a person’s identity that is still widely used in common law countries even today.

In the United States, many State laws expressly provide for the verification of a person’s identity by oath of a witness.  In Australia, however, it is not practiced widely despite there being some movement towards embracing this practice in recent decades.

For the above reason, an Australian Notary Public who needs to verify the identity of a person through the oath of a witness may look to other jurisdictions for guidance.  For example, in Florida a Notary Public must be satisfied that each of the following requirement is met:

  • That the person whose signature is to be notarized is the person named in the document;

 

  • That the person whose signature is to be notarized is personally known to the witnesses;

 

  • That it is the reasonable belief of the witnesses that the circumstances of the person whose signature is to be notarized are such that it would be very difficult or impossible for that person to obtain another form of acceptable identification;

 

  • That it is the reasonable belief of the witness that the person whose signature is to be notarized does not possess any of the identification documents specified [elsewhere in the legislation]; and

 

  • That the witnesses do not have a financial interest in, nor are parties to the underlying transaction.

In practice, a Notary Public need to exercise caution and be reasonably satisfied that the witnesses are persons of integrity with proper understanding of the role they play in verifying the identification of another person.  The Notary Public can be so satisfied either through personal knowledge of the witnesses, or from the positions of trust the witnesses hold within the community. If the above requirement can be met, then proof of identity by credible witness poses no greater risk than verification of identification through identity documents.

Notary Public Sydney – Capacity

When witnessing and certifying the execution of documents, it is an essential element of a Notary Public’s task to assess signatory’s capacity to understand the implications of the document.  A Notary Public should always distiguish between a person’s comprehension of the contents of a document and their mental ability to understand problems and make decisions arising from the document.  For the purpose of a notarial act, only the latter is relevant.

When assessing capacity, a Notary Public does not rely on any medical or legal test.  The level of capacity a Notary Public should look for depends on the nature and complexity of the document in question.  In other words, the more complex the document, the harder it should be for a Notary Public to be satisfied that a person possesses the requisite capacity to execute the document.

Notary Public’s will often need to assess the capacity of minors, the elderly or persons with a mental illness and/or physical or intellectual disability.  However, a Notary Public should be aware that the presence of any one, or a combination of these factors, does not necessarily suggest that the person in question lacks capacity.  In all cases a Notary Public will assess the capacity on an individual on a factual, case-by-case basis.

It is often helpful for a Notary Public to seek an expert opinion on whether any of the factors listed above will affect the person’s capacity.   Furthermore, when dealing with such persons, there are certain communication techniques a Notary Public should adopt:

  • Use simple, clear, direct and concise language while keeping in mind the tendency for a recipient to take words literally;

 

  • Pace the speech to allow time for understanding;

 

  • Avoid using multiple negatives or introducing multiple concepts in the same sentence;

 

  • Ask non-leading questions;

 

  • Address the person, not his or her carer;

 

  • Give reassurance and encouragement; and

 

  • Do not assume satisfactory understanding merely because the person does not ask questions.

An example of where a Notary Public may be required to assess the capacity of a testator is with the making of a will.   It is unfortunately a general truth that a testator’s mental capacity will diminish slowly with age, and a Notary Public must assess the testator’s understanding of the nature of the act and its effect and of the extent of the property of which he or she is deposing.

Notary Public Sydney – Power of Attorney

There is currently no clear judicial or legislative distinction between a power of attorney and a mere authority notwithstanding the different scope of powers they contain. Accordingly, a Notary Public should always act with caution when preparing an authority for one person to act as the agent of another.

An Australian Notary Public will often encounter a power of attorney in one of two scenarios:

  • When they are required to certify that an instrument creating a power of attorney has been properly executed so as to enable the document to be used in a foreign jurisdiction; or

 

  • When a Notary Public is requested to authenticate the execution of a document pursuant to an existing power of attorney.

The Attorney

“Attorney” simply means ‘agent’ or ‘authorized person’ and when used in the context of a power of attorney, the scope of power vested in the “attorney” is generally set out in clear terms. However, a Notary Public may sometimes be confused where there is more than one attorney specified in the document.

It has become common practice for powers of attorney to empower two or more attorneys to act ‘jointly and severally’.  In the case of Guthrie v Armstrong (1822), it became Australian law that when a power is granted to two or more individuals ‘jointly and severally’, it can be exercised ‘as all or any of them should think fit’.   However, in the subsequent case of Kendle v Melson it was held that it is more appropriate for the validity of such powers to be assessed on a factual basis in order to improve commercial efficiency.   Accordingly, when there is more than one attorney a Notary Public may err on the side of caution and not authenticate the execution of a document as their power to execute the document in question may not be clearly defined.

The Power

A Notary Public must keep in mind that although individuals may lawfully delegate a wide range of powers and authorities, there are certain powers that must be exercised personally, and which cannot be delegated to another person.

A common example of this is the office of company director, the duties of a company director must be exercised personally by the director themselves and cannot be delegated.

Similarly, a trustee who may legally delegate purely ministerial functions of their position as well as, appoint professional agents and appoint attorneys in a foreign jurisdiction to act in relation to trust property may not, however, delegate their own position as trustee to another person.

The formal requirements

It is generally true that formal aspects of powers of attorney are governed by the law of the place where the power of attorney is granted.

A Notary Public who is familiar with the formal requirements will know that a power of attorney granted in Australia must always be in writing, and when prepared for domestic purposes, they are typically prepared as deeds. On the other hand, when the power of attorney is prepared for use in civil law jurisdictions, there is no need for the instrument to conform with the requirements of a deed.

Notary Public Sydney – International Wills

Since the entry into force of the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will in Australian jurisdictions, a Notary Public is authorized to certify international wills. An international will is an additional form of will possessing certain international characteristics, namely:

  • A will made in a jurisdiction other than that of the testator’s country of nationality, domicile or ordinary residence; and/or

 

  • All or some of the testator’s property located in jurisdictions other than that of the country in which the will is made; and/or

 

  • All of some of the beneficiaries under the will are nationals of or domiciled in jurisdictions other than that in which the will is made, and/or where the properties of the testator are located.

In essence, an International Will involves two documents: the will itself, and a certificate by an ‘authorized person’, such as a Notary Public which is in a form prescribed by law.  As such, a Notary Public involved in the making of an international will has two main tasks:

  • Overseeing the formalities of the making of the will;

 

  • Completing the certificate and attaching it to the will.

The making of an International Will

Generally, the will itself can be prepared either by the testator personally, or with the assistance of someone else, such as a solicitor.  The will can be in print or handwritten and may be prepared in any language of the testator’s choosing.

At least four persons must be present at the making and certifying of the will:

  • The testator;

 

  • Two qualified witnesses; and

 

  • The Notary Public.

In the presence of the witnesses and the Notary Public, the testator needs to declare that the document contains his or her will, and that he or she has knowledge of its contents.  The testator then proceeds to either sign at the foot of the document or acknowledge his or her signature on the document if it has already been signed.

If the testator is in fact unable to physically sign the will, the Notary Public must then note the fact and the reason on the will document. As Australian law allows some other person to execute the document in the presence of and at the direction of the testator, this obstacle can be overcome. The date of the will is that of the signature, which the Notary Public will note at the end of the document.

After the will is executed, the Notary Public must ask the testator if he or she wishes to make a declaration, either positive or negative, as to the safe-keeping of the will. The answer to that question will also be noted in the Notary Public’s certificate.

Finally, the Notary Public will prepare and complete a certificate in compliance of the law. Unless contradicted by evidence, the certificate by the Notary Public is conclusive as to the formal validity of the will.

Notary Public Sydney – Standard of Proof

Before the Notary Public performs any notarial act, he or she must attempt to verify the matters to be certified. When it comes to fact checks, it is ethical for a Notary Public to take on a pro-active and inquisitorial role, instead of merely accepting information provided by the client.

Under civil law evidence rules, the standard of proof is ‘the balance of probabilities’.  This rule provides guidance to Notary Publics facing the question of how far to go in investigating the facts they are called upon to certify.

In the case of Briginshaw v Briginshaw, the High Court of Australia indicated that in order to be ‘cautious and responsible’, one must be ‘reasonably satisfied’ with the facts in question before they consider the matter to be proven on the balance of probabilities.

When this principle is applied to the daily challenges faced by a Notary Public, a simple example would be the verification of the identity of a client.  In this scenario, a cautious and responsible Notary Public may be reasonably satisfied of the authenticity of a signature after examining the signatory’s photo identification documents such as a valid passport, or driver license.  On the other hand, the standard of proof is hardly met if the Notary Public is only shown a credit card which is alleged to display the client’s name.

Notarial Services Sydney – Proof of Identification

Before the notary public is able to assist you with your matter, you should consider whether you will be able to satisfactorily identify yourself before you attend our office.

At present Australian notaries are only able to identify people in one of three ways:

  • Personal knowledge;
  • Proof by credible witness; or
  • Documentary proof.

Unless you know the notary, we recommend that you bring photographic identification documents such as a passport or an Australian driver licence with you to your appointment.

You should note that the notary will not be able to accept foreign identification documents without specific supporting local or international identification documents.

In addition to providing us with sufficient identification, you will also need to provide the notary with your personal information which they will retain along with copies of your identification documents.

Together these records will enable the notary to verify that they correctly notarised the document/s and/or your identity if they are required to do so later on.

To assist you with what identity documents the notary will accept, please see the list of valid identification documents below, along with their respective point values (please note the list is not exhaustive):

Current Australian Passport – 70 points

 

Driver Licence – 40 points
Current Foreign Passport (with Australian visa) – 70 points

 

Decree Nisi – 40 points

 

Current Foreign Passport (without Australian visa) – 40 points

 

Educational Certificate – 40 points

 

Australian Citizenship Certificate – 70 points

 

Australian Marriage Certificate – 40 points

 

Certificate of Evidence of Resident Status – 70 points

 

Proof of Age Card – 40 points

 

DFAT Document of Identity – 70 points

 

Student ID Card – 40 points

 

Australian Birth Certificate – 40 points

 

Tenancy Agreement or Lease – 20 points

 

Bank Statement or Passbook – 40 points

 

Medicare Card – 20 points

 

Credit Card – 40 points

 

Motor Vehicle Registration – 20 points