Division E: Guidance re Acting as Notary Public
1. General Information
Responsibility for admission and registration of notaries lies
with the Council of The Law Society of Scotland under the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1990.
Petitions to the Court of Session for admission as a solicitor
normally include an application for admission as a notary
public. Prior to 1 November 2007 any solicitor on the roll of
solicitors had the right to act as a notary. With effect from 1
November 2007 only solicitors holding a current practising
certificate issued by The Law Society of Scotland have the right to
act as a notary. See Legal Profession and Legal Aid (Scotland) Act
2007 (asp 5) Section 62. Accordingly most but not all
solicitors are notaries public.
The Law Society of Scotland is a member of the United Kingdom
Notarial Forum.
Current Notarial Functions
Oaths Affidavits and Affirmations.
The Solicitors (Scotland) Act 1980 provides that these may be
signed before a notary public. Such deeds should not relate to any
matter in respect of the preservation of the peace, prosecutions,
trial or punishment of an offence, or any proceedings before either
house of Parliament or any committee thereof.
Affidavits under the Matrimonial Homes (Family Protection)
(Scotland) Act 1981.
This role is changed by the Civil Partnerships Act 2004 and the
Family Law (Scotland) Act 2006.
Foreign documents.
Documents for use in foreign jurisdictions often require
execution before a notary. Care should be taken to ensure that you
have your authority registered with the Foreign and Commonwealth
Office before executing such documents.
Protests in maritime matters.
Protests for example against poor wind and weather conditions by a
sea captain on arrival in port are signed before a notary
public.
Notarial execution.
Signature on behalf of persons who are blind or unable to
write. See the Requirements of Writing (Scotland) Act 1995.
Miscellaneous
Other functions include notarising entry of a person to
overseas territories, notarising documents in connection with
formation of overseas companies and drawing for repayment of bonds
of debenture.
2. Guidance
When acting as a notary the following points should be
addressed.
Is a notary required?
If so in what capacity?
Do you clearly understand the procedures in this particular
case?
Are you disqualified in any way?
Jurisdiction
Is the matter governed by the jurisdiction where the document
originated?
Is the matter governed by the jurisdiction where the notarial act
as to take place?
A notary acting in Scotland on a Scottish matter presents no
problem.
A notary acting in Scotland in a non Scottish matter requires care
to ensure that there is no prohibition in the foreign jurisdiction
on the Scottish notary acting.
A notary acting outwith Scotland in a Scottish matter. Generally
notaries should defer to local notaries. See the Public Notaries
Act 1801
A notary acting outwith Scotland in a non Scottish matter.
Generally a notary should not act.
Identity of the deponent
Proof of identity consistent with money-laundering standards
should be seen and recorded. Often documents require the
incorporation of a declaration by the notary that he/she is
satisfied as to identity.
The deponent understands the document
It is essential the notary is satisfied on this point. Short
documents should be read over and the deponent should be invited to
formally acknowledge that they have read and understand the
document. Unless the notary is fluent documents in foreign
languages must be accompanied by a certified translation.
Some documents do not require administration of an oath. Were
documents do require administration of an oath the deponent must be
sworn. Although not strictly necessary it is good practice to have
the deponent raise their right hand and repeat some form of words
along the lines "I swear by Almighty God that the contents of this
document are true." The phraseology should be varied to take
account of persons of other religions. For those who do not wish to
take a religious oath the words "solemnly and sincerely affirm" may
be substituted for "swear by Almighty God". There is authority for
the proposition that where this oath is not actually formally sworn
the document is void (Blair v North British Mercantile Insurance
Company 1889 16 R 325)
Execution
This depends on the jurisdiction and the type of deed. In some
jurisdictions the notary and deponent require to sign on every page
including schedules and annexations. If in doubt this is safe
practice. It is essential that the document is executed in the
presence of the notary and both signatures are applied
contemporaneously. It has been held to be professional misconduct
for a notary to send a document for signature by a client and
subsequently apply the notarial signature.
Alterations should be initialled by both parties. Notaries should
add the words "notary public" after their signature. If they are
not fully designed in the body of the document a full designation
is good practice. The application of the notarial seal is not
necessary for Scottish purposes but may be necessary in other
jurisdictions.
Apostilles
Certain documents for use abroad require a signature and
notarial seal and to be "legalised" (authenticated) by the Foreign
and Commonwealth office in London. See the Hague Convention on
legalisation of foreign documents. Notaries should register their
signature and seal with the Foreign and Commonwealth Office for
this purpose. Thereafter notarised documents can be sent to the
Foreign and Commonwealth Office Legalisation Office for the
application of the Apostille together with payment of the relevant
fee.
Subscription on behalf of grantors who are blind or
unable to write
See the Requirements of Writing (Scotland) Act 1995 Ss 9(3) 9(4)
9(7) and Schedule 3.
Cases where a notary cannot act - normal conflict rules and
guidance apply.
See Gorries Trustees v Stivens Executrices 1952 SLT 54 where a
notarially executed will was void because the notary's partner was
appointed trustee with power to charge fees.
See the Requirements of Writing (Scotland) Act 1995 s9(4) which
provides that 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 invalid only to the
extent that it confers such benefit.
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