Fundamental Notarial Acts
As noted many times throughout this handbook, the standard meaning of what many people call “notarizing a document” is really notarizing a signature. To notarize a signature might loosely be defined as authenticating that signature. In Montana law there are three levels of authenticating a signature. These standard actions are described in the first three subparagraphs of MCA section 1-5-603:
1-5-603. Notarial acts. (1) In taking an acknowledgment, the notarial officer shall determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the acknowledgment is the person whose true signature is on the instrument.
(2) In taking a verification upon oath or affirmation, the notarial officer shall determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the verification is the person whose true signature is on the statement verified. (3) In witnessing or attesting a signature, the notarial officer shall determine, either from personal knowledge or from satisfactory evidence, that the signature is that of the person appearing before the officer and named in the instrument.
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The least exacting process is the taking of an acknowledgment in (1). Although this process requires the signer to appear before the notary, it does not require the notary to witness the act of signing. Often the party has mistakenly signed before realizing it should be done before a notary. In most cases, the requirement will be met if the signer acknowledges before the notary that he/she signed the document, and the notary then merely attests to the fact that the signer personally acknowledged the signature in the presence of the notary and that the notary has determined the identity of the signer as otherwise required. See short form Short Form #9 for an example of the correct format for this type of notarial block.
Next in order of particularity would be number (3) above, witnessing or attesting a signature. This is probably the most common of notarial acts requiring the notary to witness the signature by the signer who appears in person before the notary to do the signing. The notary also must authenticate the identity of the signer by approved methods. See Short Form #1 for an example of the correct format for this type of notarial block.
The most demanding process of the three is number (2) above, taking a verification upon oath or affirmation. This means the notary not only witnesses the signature which must be made in his/her presence and must authenticate the identity of the signer, but he/she must also administer an oath and affix a jurat to reflect that the signer swore or affirmed the truth of the document signed.
Acknowledgments and ordinary signature notarizations merely attest to the authenticity of the signature and the identity of the signer, but a jurat includes an oath by the signer that the statements made in the document are true. For some legal uses, the document would be inadmissible or useless if the jurat is not properly prepared. Montana motor vehicle titles and contractor license applications are two of the most commonly seen documents requiring jurat notarizations. See Short form #6 for an example of the correct format for this type of notarial block.
HOW DOES A NOTARY KNOW
WHAT TYPE OF NOTARIAL ACT TO PERFORM?
If the document contains a preprinted notarial block, the “description” tells you what to do. Use the Quick Reference For Proper Notarizations as a guide to determine which type of notarization you are being asked to perform.
If the document does not have a preprinted notarial block, you must ask the person requesting the notarization what type of notarization is needed. A notary cannot make that determination, as that would constitute the unauthorized practice of law. If the person doesn’t know, the notary should advise them to contact the source of the document to find out the desired notarial act and then use the appropriate format. |
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