SPECIAL TOPICS

A) Electronic Notarization, B) Notarizing Wills, C) Refusing To Notarize, D) Unauthorized Practice of Law, E) Financial Interest, F) Notarizing and Acting as a Witness

A) ELECTRONIC NOTARIZATION

The Pennsylvania Department of State is pleased to announce the start of Phase I of the Electronic Notarization Initiative, effective January 30, 2006. See the below links for more information about the Initiative (FAQ's, application form and procedures, list of participating counties, PA state law governing electronic transactions).

Frequently Asked Questions about the Electronic Notarization Initiative

Electronic Notary Public Application and Instructions

Eight Steps to Becoming an Electronic Notary in Pennsylvania

List of Participating County Recorders of Deeds for Phase I Electronic Notarization Initiative

Uniform Electronic Transactions Act, Senate Bill 555

B) Notarizing Wills

Execution of wills.--Every will must be in writing and executed as follows:

(1)(a) Testator's signature.--

i) The testator must sign the will at the end; or
ii) The testator's name must be subscribed at the end of the will by some other person in the testator's presence and by his or her direction.

(b) Witnesses.--The testator's:

i) Signing, or

ii) Acknowledgment:

a. That he or she has previously signed the will, or

b. That another person has subscribed the testator's name to it, must be in the presence of at least two attesting witnesses.

(c) Witnesses' signatures.--The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

(2) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.

(3) A codicil shall be executed with the same formalities as a will.

Self-proof of will.--A will or codicil may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, each made before a notary authorized to administer oaths and evidenced by the notary's certificate attached to or following the will, in substantially the following form:

COMMONWEALTH OF _____
COUNTY OF _____

We, _____, _____, and _____ the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, having been sworn, declared to the undersigned notary that the testator, in the presence of witnesses, signed the instrument as the testator's last will (codicil), that the testator (signed) (or directed another to sign for him or her), and that each of the witnesses, in the presence of the testator and in the presence of each other, signed the will as a witness.

(Testator)

(Witness)

Subscribed and sworn to before me by _____, the testator who is personally known to me or who has produced (type of identification) as identification, and by _____, a witness who is personally known to me or who has produced (type of identification) as identification, and by _____, a witness who is personally known to me or who has produced (type of identification) as identification, on _____, (year) .

(Signature of Notary Public)

(Print, type, or stamp commissioned name of Notary Public)

It is not your responsibility, nor do you have the authority, to give legal advice about the proper method for executing a will. However, you should not notarize a will if the two witnesses are not present to sign the will.

At the signing of the will, the notary speaks the following out loud to the testator:

"Please raise your right hand. (Name of Testator), do you solemnly swear that you will answer truthfully the questions about to be asked of you?"

Testator responds "I do".

"Do you identify this document as your Last Will and Testament and do you wish it be regarded as such?"

Testator responds "Yes".

"Do you declare that you are about to sign and execute this instrument as your last will, that you sign it willingly (or willingly direct another to sign it for you), that you execute it as your free and voluntary act for the purposes therein expressed, that you are eighteen years or older, of sound mind and are under no constraint or undue influence?"

Testator responds "I do".

"You may sign the will". (Testator signs)

"The witnesses will please raise their right hands. Do each of you individually swear that John Doe has signed and executed this instrument as his/her last will and that he/she signed it willingly (or willingly directed another to sign for him/her), and that each of you, in the presence and hearing of the testator, hereby sign this will as witnesses to the testator's signing, and that to the best of your knowledge, the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence?"

Witnesses respond "Yes".

"Please sign the affidavit". (Witnesses sign the affidavit)

Notary completes the jurat below the affidavit. Your certificate must follow the will or be attached to it in substantially the following form. If you attach your certificate to the will, be sure that the will is clearly identified on your certificate. The following wording is recommended and should be placed above or below the notary certificate:

This certificate is attached to (exact name of will)

Executed by (name of testator) on (date)

COMMONWEALTH OF __________________

COUNTY OF _________________

We, (testator), (witness), and (witness) the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, having been sworn, declared to the undersigned notary that the testator, in the presence of witnesses, signed the instrument as his/her last will (codicil), the he/she (signed) (or directed another to sign for him/her), and that each of the witnesses, in the presence of the testator and in the presence of each other, signed the will as a witness.

Signature of testator

Signature of Witness

Subscribed and sworn before me by (testator), the testator who is personally known to me or who has produced (type of identification) as identification, and by (witness), a witness who is personally known to me or who has produced (type of identification) as identification, and (witness) a witness who is personally known to me or who has produced (type of identification) as identification, on (date), (year).

(Seal) Signature of Notary Public

(Name of notary public, printed, typed or stamped)

C) Refusing to Notarize

The most common situations occur when:

	the signer is not present;
	the document is incomplete or blank;
	the notary is the signer;
	the signer has been adjudicated mentally incapacitated and has not been restored to capacity as a matter of record;
	the notary does not personally know the signer and the signer cannot produce acceptable identification;
	the notary is a party to the underlying transaction or has a financial interest in it; or
	the signer does not speak English and there is no one available to translate the document into a language the signer understands.

There are other precautionary reasons for which a notary should refuse to notarize. These situations occur when:

	the document does not have a prepared notary certificate, and the signer cannot tell the notary what notarial act is required;
	the notary believes that the signer is being coerced or does not understand the consequences of signing the document;
	the signer appears to be drunk, sedated, or disoriented; or
	the notary knows or suspects that the transaction is illegal, false, or deceptive.
	In addition to the situations described above, a notary may refuse to perform a notarization in a variety of circumstances, such as when:
	the signer cannot pay the notary's fee for services;
	it is before or after the notary's regular office hours;
	it is a holiday;
	the notary is busy with other work or activities;
	the notary would be inconvenienced;
	the notary is sick;
	the notary is not comfortable with the request;
	the signer is a minor;
	the document is written in a foreign language that the notary does not understand; or
	the notary is requested to travel to another location.

How to Refuse

A refusal to notarize may be viewed as an inconvenience to the signer or may be misinterpreted as unlawful discrimination. Therefore, notaries should be careful to refuse in a tactful manner. Tactfulness should not be a problem when the refusal is based on one of the prohibitions by law, such as when the document is incomplete. The notary should explain that the law prohibits notarizing in that situation.

However, the situations in which a notary should refuse for precautionary reasons may be more difficult to explain. For example, suppose a notary suspects that the signer is being coerced or that the transaction may be illegal. In such situations, it may be best for notaries to simply explain that they are not comfortable with notarizing that document. No further explanation is necessary. Another good approach is for the notary to state that he or she is not familiar with the type of document involved. It is best not to be drawn into a debate regarding the refusal.

d) UNAUTHORIZED PRACTICE OF LAW

The reason for prohibiting the unlicensed practice of law is to protect the public from incompetent, unethical, or irresponsible representation it is not done to protect lawyers.

Now, exactly what services can you provide without engaging in the unlicensed practice of law? Generally speaking, a non-lawyer may only sell legal forms and then type those forms which have been completed in writing by the customer. As an example, you could sell a will form to an individual. The customer would have to fill in the blanks for the factual information customizing the will to his or her own needs. You can have no oral communication with the customer regarding how the form should be completed, and you may not correct mistakes. You may simply type the information written down by the customer.

Under no circumstances may you give legal advice about possible remedies or courses of action in any legal matters. You are prohibited from counseling your customer about appropriate legal action.

Not only can a non-lawyer run into problems when assisting an individual in completing forms, the non-lawyer also runs afoul of the unlicensed practice of law if the non-lawyer gives legal advice. This is especially problematic where the customer is relying on the non-lawyer for proper advice and guidance. Generally, if the advice affects an individual's important legal rights, it will probably be viewed as legal advice. For example, your friend needs to authorize another member of her family to provide care for her child while she is temporarily out of the country. Because you are a notary public, she asks you to advise her. So, you assist her in preparing and wording a power of attorney. Unfortunately, you just engaged in the unlicensed practice of law.

As a notary public, you are held to a higher standard than other individuals because you are holding a position of trust. This trust is violated if improper legal advice and services are provided. The public is harmed and notaries are held in disrespect. By consistently observing the restrictions placed upon you as a non-lawyer notary public, abuses can be prevented and the public can be spared unnecessary expense and hardship.

E) Financial Interest

What constitutes financial interest? There is no exact answer to this question. Although the term is not defined in the notary laws, there are some clear examples of financial interest. For instance, when a notary receives a sales commission on the transaction at hand (the sale of an automobile, an insurance policy, real estate, etc.), he or she would be prohibited from notarizing the signatures those persons involved. Additionally, the owner of a business should not notarize signatures on documents pertaining to his business transactions. A salaried employee (if not related to the document signer) is exempt from this. However, what about a notary whose spouse owns the business and he or she receives no salary? Experts on notary issues agree that the spouse of the business owner would probably have a financial interest in the transactions of that business, and therefore, should not notarize in these instances.

An attorney is exempt from this and is permitted to notarize his client's signature on a document that he has prepared, if he is serving as the attorney-of-record and is only receiving a fee for his legal services or his notary services. However, if the attorney were also a party to the transaction, or had an interest, such as being named the executor or administrator of an estate, he should not notarize his client's signature on such documents.

When you are unsure whether you are a party to or have a financial interest in a particular transaction, it is always safer to err on the side of caution and decline to notarize the signature. Keep in mind that, as a notary, you should be a disinterested third party who, if called upon to testify about the transaction, would be completely detached from all parties and appear unbiased in your testimony.

F) Notarizing and Acting as a Witness

A notary by definition is an objective witness to the execution of important documents.

However, you must be sure that the document does not call for the witnesses signatures to be notarized. If it does, you must defer to another notary if you are to be the witness.