Notarization Defined
Notarization, also known as a notarial act, is, much like many things in our legal system, open to interpretation but with a fairly standard concept behind it. A notary public, who is an appointed official of the state, is authorized to verify the signing of a document and the identity of those who signed it. Here is how it works in Texas: "A notary may notarize a signatory’s signature on a document whether or not the document is to be filed, registered, or recorded in Texas or another jurisdiction." Once a document is notarized, it is still tantamount to any other document in the eyes of the law. The notarization does not add any validity to the contents of the document, just as the lack of notarization does not negate it . Notarization provides evidence that the signatories signed it and that their identities were confirmed at the time of the signing. "An authenticated notarial certificate, such as a signature or seal, is prima facie evidence that a notarial act, including the power to administer oaths, was properly performed." In other words, for an action to have "prima facie" status means that it is presumptively valid until it is proved otherwise. In practical terms, this means that if a piece of paper is notarized, it is presumed that the parties signed the document in front of a notary public. This is not ironclad, but it is a strong presumption.
Legal Effect of Notarized Documents
While notarization itself does not assume the validity of the provisions of the document authenticated, there is a presumption of legality of the documents that have been duly notarized. Lawyer Malik Mendez explains that "All documents that are notarized have to be received by legal means. The notary public who authenticates or legitimizes the documents registers them into a Public Deed Record Book which is his/her legal evidence to provide that the notarization has taken place. This registration is the legal proof that a particular document has been authenticated by a particular notary public Commissioner."
When there is a dispute associated with the legal validity of the notarized document, either party could have a request free of charge registered into the Notary Public Registry before the Judge of the Notary Public to nullify the registered document. Once this request against the registered document is registered, it will lead to the nullification of the registered document. A decision from the Judge of the Notary Public with ratification of the nullification of the document in question can be the basis for its illegality, noted Alain Eloy De Meyer, an attorney who specializes in notarization.
It is a common rent or purchase contract in which the parties have granted consent under their capacity. Some of the laws and concepts that are set out in the authenticated document could be assumed as illegal unless there is a formal cancellation request registered by one of the involved parties.
It is also important to emphasize that a registered and authenticated document could always be defined as legal however the provisions of the document could be considered as irregular, paradoxical, or irregular or even as legally absurd. There are several notions involved in the legality of notarized documents such as reliability, authenticity, legality, and authenticity in the legal system.
Notarized Documents v. Other Forms of Evidence
It may be the case, then, that a notarized document is not given more credence than any other evidence presented. While it will hold more weight than a simple unsworn statement, it will generally not be enough by itself to win a case. So, a notarized document is clearly factually relevant, but not a guarantee. The key is that it is not the only option available to prove a case. Often, notarized documents are just as circumstantial as any other evidence when not coupled with additional corroborating evidence, and, even then, in some cases have never been found sufficient to defeat an opposing testimony or objection.
While it is true that notarized documents will usually hold binding evidentiary weight when properly authenticated, this does not mean they are always controlling. Witnesses can testify against the intent of the document, demonstrating it to be irrelevant to the matter at hand or incomplete in addressing the basis for the payment. Access to such notarized documents can also be challenged if they were not submitted to the court under the appropriate and required format.
The points at the beginning of this section demonstrate that notarized documents are not sufficient to honor a valid will given by a person lacking capacity. If the person retained no capacity when the document was notarized, then this point will probably be argued by the opposing counsel. Since witnesses have already been found to tear down this notarized language, the challenge is one of demonstrable fact – whether the person was capable of signing the document at the time of signature taking place. When viewed in the light of other evidence, this type of notarized document is often not sufficient to prove sole ownership.
Types of Notarized Documents Commonly Found in Court
While any document can be notarized if the parties wish to have the notarization, there are certain documents which are frequently notarized before being presented in court. An affidavit is one such document. An affidavit is a written statement made under oath before a notary public. In many divorce actions, for instance, an affidavit will be used to prove that a person is not living with a spouse and that the marriage has been broken down irretrievably for at least the immediate past 6 months. A notarized affidavit may also be used to meet the statutory residency requirement when filing to obtain a divorce in Pennsylvania. For instance, Pennsylvania residence requirements state that to file for divorce in Pennsylvania, either you or your spouse must have been a resident of Pennsylvania for at least 6 months before filing the action. But it can only be filed in the county in which either you or your spouse have resided for the past 6 months. A notarized affidavit may be used to prove the appropriate length of time has been met in the proper county .
Another commonly notarized document would be a contract signed between parties. For instance, in a personal property settlement agreement in which two parties decide who will receive specific property in the divorce, a notarized agreement may be used in court to prove the agreement was signed by both parties.
A declaration is another commonly notarized document. A declaration is a signed document that expresses the legal status of a person, place or thing. In court, a declaration may be used to document the need to allow a minor child to travel out of the country by a non-parent, for instance, if a parent is not traveling with the minor child abroad. A notarized declaration may also be used when selling a residential property by a homeowner who is currently out of state.
Notarized documents are useful in many areas of the law and their use is frequently required in family law matters. Of course, all documents must be reviewed by an attorney to ensure no rights are waived unintentionally.
Challenging Notarized Documents in Court
When a notarized document is contested in court, several issues may arise regarding its authenticity. Forged signatures and fraud are possible issues. Most notarized documents contain a signature of a person who was signing their name in front of the notary and that signature can be contested as false. Since notaries do not have any special training or education in signature verification, any person trained in handwriting analysis can provide an opinion of whether a signature is authentic or forged. Another issue arises when a signature on a notarized document is made by someone who was fraudulently induced to sign the document or by someone who believed they were signing a different document. This is especially relevant in general power of attorney cases where the person executing the power of attorney was misled into believing they were signing a different document (i.e., a treatise or instruction brochure) and agreed to the notary’s presence out of courtesy. Even if the signature was made in front of the notary, it can still be thrown out of evidence as fraudulent. Both forgery and fraud require a trial to prove the forgery or fraud to a judge or jury.
Improperly executed documents can be challenged in court. A notarization can be said to be improper if the notary failed to follow state law, a specific court rule, or another requirement. In Michigan, for instance, it is not sufficient that the person who signs the document appears before the notary. The notary must also verify the identity of the person signing the document through ID or other secure means. Many banks require a customer who wants a check cashed before the customer receives payment to show two valid forms of identification. To be properly notarized according to Michigan’s statute, the person making the check requires a state-issued photo ID and a second form of identification that has a signature. If the customer went to the bank with simply a photo ID and no signature identification, the notarization was improper.
Many states require that a notary take an oath of office. However, if the notarization happened before the notary took the oath, the document could be challenged as improperly notarized. A number of states require a witness, without much explanation of how that witness should verify the signature on the document. Suppose the witness testifies that he witnessed the signature but could not identify the signor. The witness testifies that the signature may have been a product of forgery. The court might find the notarization to be improper.
Fraud in the inducement and lack of competency could challenge the validity of a notarized document. If a person is not competent to contract due to mental incapacity, the person could not enter into a valid contract. If the terms of the notarized document were known to be above the competency level of the person, the document could be challenged as unenforceable.
Witness testimony may be not required in some states.
Increasing the Legal Strength of Notarized Documents
For anyone who feels that their notarized documents could be deemed inadmissible, there are a few essential steps they can take to boost the strength of their notarization. To begin with, whoever is in charge of overseeing the notarization of the documents should make certain that their preferred notary public is actually registered, either locally or at the state level. A notary who has not been authenticated by their relevant authority may be a sign that the notarization is not being done appropriately. Researching local and state requirements for notarizations and verifying that the notary meets these expectations is a critical step in preventing court challenges from occurring. Furthermore, the notary must ensure that he or she performs a thorough review of the documents in question prior to notarization. Because the notary is often the first line of defense against fraudulent or faulty documents , a notary who does not understand the contents of these documents is more likely to not perform a thorough check of them. As a result, this failure to properly review the documents could put the individuals who obtain notarizations from the notary at risk of having their documents challenged. All legal standards with which the notary must comply should always be upheld in relation to notarized documents. Certain requirements might specify the presence of witnesses, the use of certain forms and the need to pay particular fees. While it may be tempting to push through notarizations as quickly as possible, this is rarely, if ever, a good idea. Individuals who put in a little bit of extra effort to find a reliable notary public are much less likely to get into trouble in a court of law than those who do not research their notary. The best way to prevent challenges to your notarized documents is to get it right from the start.