Guidance re Acting as Notary Public

There is generally no problem with a Scottish notary public exercising notarial functions in Scotland in respect of documents to be used either in Scotland or abroad, but caution is required for foreign documents. The question also arises whether a Scottish notary public outwith Scotland can, or should, act as a notary. The legal position is not straightforward and three factors have to be considered before acting -

a). the law of the jurisdiction where the document originated
b). the law of the jurisdiction where the document is to be notarised
c). the law of the jurisdiction where the notarised document is to be used

Examples

• A notary acting in Scotland in a Scottish matter - this presents no problems.
• A notary acting in Scotland in a non-Scottish matter - Generally there will be no problem, but this will depend on the foreign jurisdiction. For example, the law of a foreign jurisdiction may dictate that only notaries qualified in that jurisdiction may act.
• A notary acting outwith Scotland in a Scottish matter - Generally there will be no problem, but this will depend on the jurisdiction where the notary is situated. For example, a Scottish notary in London should not act but defer to the local notaries. This is both good practice to maintain good relations between notaries of different jurisdictions and to respect the law in the Public Notaries Act 1801 and the Legal Services Act 2007.

Under the Public Notaries Act 1801 as amended, Section 1, “No Person in England shall be created to act as a public notary unless such person has been admitted as a notary in England and Wales”. If Scottish notaries exercise the office of notary public in England and Wales in respect of documents to be used in England and Wales, they will be null and void: See Weston v Gribben and Foreign and Commonwealth Office [2006] EWCA Civil 425

• A notary acting outwith Scotland in a non-Scottish matter - Generally, a notary should not act.

Identity of the deponent

it is essential that the notary must be satisfied as to the identity of the deponent. If the deponent is unknown to the notary, the notary should ask for proof of identity, e.g. passport, medical card, etc. Certain forms of affidavits incorporate a docquet to this effect and it may be prudent to have such a docquet where the affidavit is for use outwith Scotland. This should be worded “I satisfied myself as to the identity of the Deponent by [personal acquaintance] [examination of his/her passport No. ABC123]”

The deponent understands the document

It is essential that the notary is satisfied that the deponent understands what he or she is signing. If the document is short, it is prudent to read over the document to the deponent and ask if he or she understands what is written. Strictly speaking this is not necessary, but if the document is lengthy the notary must endeavour to paraphrase or summarise the contents before signature. If the document is in a foreign language, unless the deponent is fluent in that language, there must be a translation. The notary should ensure that the translator provides a statement signed in the notary’s presence stating that the document is a true translation.

Administration of an oath

This is an area where notaries frequently either do not know how they should proceed or do not proceed correctly. There is a distinction between documents for which there is a requirement that the deponent must be solemnly sworn and those for which there is not. If a document does not require an oath, a notary need only establish that the deponent understands that the document is a formal one and the deponent is acknowledging that the contents are true by signing in front of the notary. On the other hand, if a document requires that the deponent has been sworn before signing, that is what should happen.

To take an example - a document may be worded along the lines that the deponent appearing before the notary “being solemnly sworn and examined, depones ....”. This means that as in all cases requiring an oath, the deponent must be sworn. What exactly does this mean?

It is appropriate for the deponent to stand up and raise his or her right hand, so that the solemnity of the oath is respected. It is necessary for the deponent to repeat when asked by the notary some form of words along the lines “I swear by Almighty God that the contents of this affidavit are true”. It is the words “swear by Almighty God” which constitute the solemn oath.

Persons of non-Christian religions strictly speaking should swear according to their religious practice. The notary has, however, to be satisfied about the appropriate form of oath.

For those who do not wish to take a religious oath, an affirmation can be substituted. In this case, the words “solemnly and sincerely affirm” are substituted for “swear by Almighty God”.

It is appreciated that a notary may find the need to ask a client to swear somewhat embarrassing, but that element is an essential part of the Notarial function. It has the advantage of marking out the solemnity of the proceedings. There is authority for the proposition that where an oath is not administered when required, the document is void (Blair -v- North British Mercantile Insurance Company (1889) 16 R 325).

What is actually signed by the deponent and the notary depends on (a) the jurisdiction for which the deed is intended and (b) the type of deed. So far as the jurisdiction is concerned, it may dictate the requirements, e.g. signature by both deponent and the notary on each page. If in doubt, it can do no harm to have every page, or at least every sheet, signed by both. Unnecessary signatures can be ignored, but missing signatures can invalidate.

In Scotland the type of deed will dictate what is required. For instance, an undefended Divorce Affidavit is signed on each page as a matter of practice. Generally speaking the provisions of the Requirements of Writing (Scotland) Act 1995 should be followed.

The procedures for execution of documents when the deponent is personally present with the notary, and when the deponent and notary meet remotely or non-face-to-face notarisation are set out in the next section of this guidance.

Execution FAQs

• What about annexations and alterations? - Alterations should only be made before signature and initialled by both deponent and notary. Alterations made after signature should be signed again by both deponent and notary. Annexations should normally be signed by both. Again, the provisions of the 1995 Act should be followed.
• What should the notary sign? - Apart from his signature the notary should add the words “notary public”. If, as is likely, the notary is being designed in the document there is no need for anything else but if not, the place of business, e.g. Forfar, should be added at least and it is better to have a full designation. In some affidavits for use outside Scotland it is necessary to have the date and place of birth of the notary.
• What about the notary’s Seal? - In Scotland a seal is not required as part of the execution by a notary. However, seals with various mottos (which incidentally need not be in Latin) are often retained either for display or use as paperweights. For foreign documents, however, it is good practice to append the seal to the notary’s signature. The more formal the appearance the better is the view in many jurisdictions and the lack of a seal may be a problem in relation to a document presented abroad.
• What are Apostilles? – This refers to documents for use abroad which require a signature and seal of the notary to be “legalised” (i.e. authenticated) by the Foreign and Commonwealth Development Office. This covers countries which are parties to the Hague Convention on Legalisation of Foreign Documents. In such cases the Foreign and Commonwealth Office adds a certificate called an Apostille to the documents. Notaries can apply to have their signature and seal so authenticated by the Foreign and Commonwealth Development Office to ensure an Apostille is available when required.

The current contact details are:

Legalisation and apostille service, Foreign, Commonwealth & Development Office

Email: legalisation@fcdo.gov.uk

Enquiries: 03700 002 244 between 9am and 5pm, Monday to Friday

There are two options for execution of documents:  The deponent being personally present with the notary, and remote or non-face-to-face notarisation. 

In this case, the document is signed by the Deponent in the presence of the notary or, if the document has been signed in advance, that the signature is acknowledged by the Deponent.  In the latter situation it is preferable to have the document signed again by the Deponent.  It should be remembered that it is professional misconduct for a notary to send a document for signature and for the notary to “notarise” that signature without having seen the Deponent sign or having that signature acknowledged.  (See for example Law Society of Scotland v James Buchanan Donald, Scottish Solicitors Discipline Tribunal, 6 May 2008). 

The ability to notarise documents remotely have now been incorporated into the Requirements of Writing (Scotland) Act 1995 by virtue of section 39 of the Coronavirus (Recovery and Reform) (Scotland) Act 2022.  The provisions appear in section 10A of the Requirements of Writing (Scotland) Act 1995 and came into effect on 1 October 2022.

Section 10A states:
(1)    The following requirements (however expressed) do not apply -

(a)    a requirement for a relevant person to be physically in the same place as another person when that person -

(i)    signs or subscribes a document,
(ii)    takes an oath, or
(iii)    makes an affirmation or declaration,
(b)    a requirement for another person to be physically in the same place as a relevant person when the relevant person signs or subscribes a document.

(2)    In this paragraph -

“relevant person” means –

(a)    a solicitor,
(b)    an advocate,
(c)    a notary public,

“requirement” means a requirement arising from an enactment or rule of law.

(3)    For the avoidance of doubt:

(a)    the requirements described by sub-paragraph (1)(a) include a requirement that may be fulfilled by the physical presence of a professional of a type not mentioned in the definition of “relevant person” as well as by a professional of a type that is (for example, it includes a requirement for the physical presence of a solicitor or a registered medical practitioner), but

(b)    sub-paragraph (1) only causes such a requirement not to apply in relation to a professional of a type that is mentioned in the definition of “relevant person”.

What does this mean for notarising documents

Section 10A has made permanent the relaxation of any rule of law or statute which requires a solicitor or advocate (s9 of the Requirements of Writing (Scotland) Act 1995) or notary (general notarial law) to be physically present when the granter signs a document where physical presence would have ordinarily been needed. It does not affect the ordinary law which requires witnesses to certain types of documents, such as wills or registerable deeds, where there is no need for a solicitor or notary to be present. 

The solicitor or notary must be satisfied that the procedure followed will be acceptable in the jurisdiction where the document is executed by the deponent. 

In the event that the document is for use in a foreign jurisdiction, the solicitor or notary should advise the deponent of their responsibility to ensure that the document will be accepted in any jurisdiction in which it is presented.

This Advice and Information acknowledges that there are other ways to authenticate the execution of a document remotely but, video technology should make execution of documents under section 9 of the Requirements of Writing (Scotland) Act 1995 and notarial documents easier for individuals and notaries who cannot be physically present together for the execution of such documents.

Interpretation

In this section:
“video technology” means any electronic device or process that facilitates communication of visual images and audio in real time between a notary and a remotely located individual, including a remotely located individual who has visual, hearing or speech impairment:

“remotely located individual” means an individual who is not in the physical presence of the notary who wishes to have the execution of a document authenticated by a notary or who is blind or unable to write and wishes a solicitor to carry out the execution of a document under section 9 of the Requirements of Writing (Scotland) Act 1995) and ‘individual’ shall be interpreted accordingly.

2. Notarial acts using video technology

(a)    A notary may, subject to the conditions set out in paragraph 4 below, use video technology to certify the execution of a document signed (including by electronic signature) by an individual by means of a notarial act.

(b)    Both parties should begin the process by each having an unsigned version of the document, in relation to which notarial acts are to be performed, which can be transmitted one to the other via post, fax, email or other electronic means.

The individual will require to provide the notary with documents necessary to satisfy the notary as to their identity having regard to information published by the Society on Non Face-to-Face Identification and Verification  which provides guidance on client identity verification using video conferencing.

The notary can use free basic software products that enable video conferencing to assist with the identification and verification process. This is a more manual process and where personal or sensitive information supporting identity verification is sent by email or other electronic means, the notary should consider taking additional steps to mitigate security risks, including, where appropriate, encryption.

To undertake manual identification and verification, the notary should follow this process:

• • Request that the individual sends a clear, legible colour image of their passport/ID document using a suitably secure means, such as encrypted email.
  • Arrange to video call the individual. During this call, ask the individual to hold the passport/ID document to their face. By checking the digital copy along with capturing the image of the client with the passport/ID document, the notary should be satisfied that they are one and the same before proceeding. 
  • In addition to the passport/ID document, ask the individual to provide a digital copy of their valid proof(s) of address. 

The notary should ensure that the rationale for adopting revised identification and verification measures is documented in the client/matter level risk assessment and to risk grade the relationship accordingly. Policies, controls and procedures should be revised to take this process into account. 

Should the individual be unable to satisfy these requirements and/or present a higher risk of money laundering, the firm should ensure that they are satisfied that those risks are addressed before proceeding. This may include obtaining further verification of identity or undertaking other measures as stipulated under Regulation 33(5) of the Money Laundering Regulations 2017.

(c)    Once both parties have an unsigned copy of the relevant document the notary should take steps during the video conference to ensure that the document that they have sight of is an exact copy of the same document that is before the individual. This can be done by, for example, having the individual read out the document or by having the individual share their screen. 

Once the notary has confirmed that each document is the same, the notary should then either place the individual on oath or take the solemn affirmation or receive the statutory declaration and observe the signature or requisite act of the individual.

The signed document must then be sent to the notary to allow them to notarise it, and this can be done is a number of ways:

i.    If the document is an electronic document and has been electronically signed by the deponent it can electronically notarised upon receipt.
ii.    If the document is a traditional, hard-copy document and has been signed by traditional means that document can be returned to the notary by post or courier for them to notarise.
iii.    In order to fulfil the intention behind the legislative change it will be acceptable for a traditional document that has been signed in a traditional manner to be scanned and returned to the notary to notarise upon receipt.

If option (iii) is considered the most appropriate or necessary process to undertake, it would be best practice to request that the original, traditionally signed document is provided as soon as possible to the notary to form part of their file and audit trail.

The notary should also take care when producing a narration (see (h) below) to ensure that if the process in (iii) is followed that it is clear that they have notarised a ‘copy’ rather than an ‘original’ document.

(d)    If practicable the notary or where applicable the solicitor must, having obtained the prior consent of the individual, record the video conference and retain that recording for a period of 10 years.

(e)    Where it is not practicable to record the video conference the notary shall, having obtained the prior consent of the individual, take screen capture photographs of the individual and his or her identity documents.

(f)    If agreed to fall within the scope of the work, the notary must use all reasonable endeavours to establish that this procedure will result in the acceptance of the document in the receiving jurisdiction. If this is not agreed to fall within the scope of the work the notary should advise the deponent that they are not accepting responsibility for ensuring the receiving jurisdiction will accept the document.

(g)    The notary should not be considered, and should not be described as, a witness to the document certified under this Advice and Information.

(h)    The notarial certificate should narrate the exact procedure followed by the notary. The certificate must not state or imply that the notary was physically present with the individual when the document was executed. The procedure followed, including a description of the type of video technology used, should be recorded.

(i)    Where the document has been sworn/declared before a notary by way of video conference rather than in person, appropriate wording should be inserted in the declaration to confirm that. For example:

“Declared by way of video conference
 Signed:  [Signature of deponent]
This:  ______________ day of ___________ 20XX
At:  [insert place of signing by deponent]
before me [insert name of person authorised to administer the oath/declaration], via video conference which I attended from [my address at] [insert address].”

3.   Requirements of Writing (Scotland) Act 1995 section 9

(a)    A solicitor may use video technology to subscribe a document or sign a testamentary document under section 9 of the Requirements of Writing (Scotland) Act 1995.

(b)    The requirement under section 9(2) that ‘subscription or signing by a relevant person under subsection (1) above shall take place in the presence of the granter’ does not apply in terms of section 10A.

(c)    The solicitor must ensure that the granter and the solicitor have complied with the terms of section 9(1) by video technology and that the other requirements of this Advice and Information regarding client identity verification using video technology have been complied with.

4.   Refusal to perform notarial act

A notary who is requested to perform a notarial act using video technology may refuse to do so where the notary is not satisfied that the notarial act, if performed, would comply with this Advice and Information.

5.   Saving of existing requirements

The above does not affect the application of the existing Guidance concerning confirmation of the understanding of a deponent or the manner of administration of an oath or affirmation.

The Requirements of Writing (Scotland) Act 1995, (S.9) altered the procedure for what is commonly, but now erroneously, known as notarial execution. As with the pre-1995 procedure “the relevant person” which includes a notary can execute documents for persons who are blind or unable to write. It should be noted that under the Act, a disabled person is not obliged to execute in this way and can sign personally (Ss. 7(2) and 9(7)). It should also be noted that the execution can be with or without a witness and if witnessed the document will be self-evidencing under S.3.

The procedure to be adopted, as set out in S. 9(3) and Schedule 3 is as follows. At the outset the granter declares that he or she is blind or unable to write. The notary either reads the document to the granter or the granter declares that he or she does not wish this. If there is a plan, this must be described to the granter or again the granter can declare that he or she does not wish this. The granter authorises the notary to subscribe. The notary subscribes. If the document is a Will the notary subscribes every sheet. If there is a witness, the witness also signs. The execution must take place in the presence of the witness who should sign the document immediately. There is no need for a holograph document as previously required. The document or testing clause must state a) that the document was read to the granter or that the granter indicated that he or she did not want to read and (b) that the granter authorised the notary to sign. It is not necessary for the testing clause to be added immediately.

Another welcome change is that under S. 9(4) a document signed by a notary or other relevant person which confers a monetary benefit on that person or his or her spouse, son or daughter, is only invalid to the extent that it confers such benefit. The Society recommends that if the document to be signed is a will naming a solicitor as executor with the right to charge professional fees, the execution should be done by a solicitor in a different firm (see instances where a notary cannot act).

As all notaries in Scotland are also solicitors, the professional rules prohibiting acting in certain situations, e.g. where there is a conflict of interest, apply to notaries.

In the particular case of notarial execution, there is a rule that the notary should be independent and not have a disqualifying interest. This rule is strictly applied (e.g. Gorrie’s Trustees -v- Stiven’s Executrices 1952 SLT 54 where the notarially executed Will was void because a notary’s partner was appointed a trustee with power to charge fees for acting professionally as solicitor). However, since 1995 as already noted, where a document confers on the relevant person or his or her spouse, son or daughter “a benefit in money or money’s worth (whether directly or indirectly)” it is only invalid to the extent that it confers such benefits.

The meaning of the words “benefit in money or money’s worth” is not defined in the Act and, therefore, it remains necessary to have an independent and disinterested notary. In a Will, an entitlement to charge fees or share in fees will still be struck at, although the remainder of the Will stands.

If there is more than one party to a Deed who is blind or unable to write, it remains good practice to have an independent and disinterested notary for each.