Last week we shared an actual situation in which a gravely ill signer died before the Notary could complete the certificate. The woman, who was physically impaired and confined to her bed, used a signature by mark to sign the document, and two witnesses also signed. The woman also was lucid enough to satisfy the Notary that she was aware of what she was signing and was willing to do so.
What You Said
Our Notary community weighed in on the situation and offered many thoughtful responses:
“The purpose of a Notary is to verify the identity of the signer and then to witness [that] the … document is signed,” said Dorothy Melton. “That actually did transpire. I would verify that I did exactly that. The seal is simply a verification that the transaction occurred.”
Christine Wissbrun also said she would complete the notarial certificate because the Notary ascertained that the signer was of ‘sound mind’ and had signed the document, which was witnessed by two people.
“I would have had my Notary journal entry completed first, including the signer’s mark and information,” Wissbrun added. “After the notarial certificate was completed, I would make detailed notes as to the events leading up to the signer passing away because inevitably an heir or a relative that may not benefit from the transaction would most likely challenge the document signing.”
David Gordon agreed. “I would complete the notarization and make a detailed note in the journal. The certificate is declaring facts concerning the actual execution of the document: the signer was physically in the presence of the Notary and witnesses, was identified by the Notary and signed in the presence of the Notary and witnesses, and, finally, the witnesses were also identified and signed at the signer’s request and in her presence and the Notary’s presence.”
Most commenters said they would complete the certificate. A few mentioned the need to collect their fee, and one said they would not complete the certificate because the fee had not been paid.
Generally speaking, the Notary should complete the certificate — for the reasons our community mentioned. The certificate provides evidence that the notarial act has already taken place:
- The signer appeared before the Notary;
- The signer provided satisfactory evidence of identity; and
- The signer verified that the signature on the document was theirs.
Even though the signer passed away before the certificate was completed, the Notary could still complete it because everything in it would still be true. Every certificate is always written in the past tense, because the notarial act has already occurred.
However, for California Notaries, this situation could represent a gray area because the Secretary of State has said that all steps of a notarization must be completed in the presence of the signer. It could be argued that once the signer dies, you are no longer in her presence.
The suggestion of some commenters — to make detailed notes of the situation in your Notary journal — is a very good idea. Because trust documents typically direct how a person’s assets are to be distributed after they die, this document could easily become embroiled in a legal case regardless of what you choose to do.
Collecting the fee also could pose a delicate situation. Assuming that the signer contracted for the Notary’s services, nobody else is responsible for paying the fee. Depending on your state laws, it may be possible to ask for payment in advance.
Michael Lewis is Managing Editor of member publications for the National Notary Association.