Posted by JeffC/CA on 8/19/13 11:14am
Msg #480985

Acknowledgement/Signed of own free will

I was just getting caught up on my forum reading and found a recent post about a separation/divorce and requiring a signer to confirm that they are signing of their own free will. This sounds like a good idea, because of course we don't want to promote coercion. That said, I decided to review my CA notary Handbook and Workbook to be clear on the requirements. Also, note that I haven't gone as far as searching all the code, yet.

I couldn't find anything regarding a signer's free will. We are required to have the person appearing before us "acknowledge" that they signed the document. This works for a document not signed in the notary's presence. I believe that if they sign in front of us, that is probably acknowledgement enough; we're witnessing them doing so. And of course all documents requiring jurats must be signed in our presence.

I am all for preventing fraud and coercion, etc. Although I can't see any harm in asking if a person if they are signing of their own free will, I don't see it as a requirement. I also think we could ask if they are the person named in the document (Are you this John Doe and not some other John Doe?), but this is not a requirement.

I'm curious if anyone in CA can cite law/code or SOS recommendations regarding this. If anyone has anything to add regarding requirements of this sort in other states, I'm curious, and I'm sure this could be useful info for others. I hope I don't receive the wrath of the forum for this, but I think a small dark cloud is forming over my computer as I'm preparing to press the Post button.

Reply by MrEd_Ca on 8/19/13 11:35am
Msg #480986

Re: Incurring the Wrath of the Forum --

While I don't, usually, ask the signer if they are signing of they're own free will, I always ask if that is their 'normal' signature. For the post you were referring to (I forget which one it was specifically), it seemed like a good idea for those situations where one is unsure if the signer is being corereced or having their 'arm twisted' by someone else. Or if the notary suspects something of the sort. I do not know of any Code or recommendation for this.

As far as 'receiving the wrath of the forum' --- perhaps there should be a button for that. It could be just to the right of the 'Like' button, which should go just to the right of the 'Just Politics' button. That way that reaction can be gotten out of the way real quick & we all can get on with (hopefully) useful reply's. JMHO.

Reply by Stephanie Santiago on 8/19/13 12:50pm
Msg #480998

I always ask the signer if they signed of their own free

will, and if the understood what they signed.
This is part of my procedure. (I state this for every notarization I conduct).

Reply by VT_Syrup on 8/19/13 11:45am
Msg #480988

One issue is that in addition to any definitions contained in laws and regulations, words can have their ordinary meaning. So if most of the states think "acknowledged" means the person must state they acting freely, that could be the ordinary meaning of "acknowledged", and that may very well apply in California even though there isn't any definition in the law that says so.

Also, the wording on the CA certificate is "acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument." So the signer must say something to you, or you must ask them, to indicate that they didn't merely write their name, as one might write one's name on a set of notes handed out at a meeting to identify one's copy. The signer must indicate he/she executed it. If the signer is a representative, he/she must also indicated he/she was acting in his/her authorized capacity and that the entity being represented executed the instrument.

Reply by MW/VA on 8/19/13 11:48am
Msg #480989

Not in CA, but doubt that it's spelled out specifically in

any notary laws. I think it is a common legal "understanding" that any legal document or financial instrument has to be signed by someone who is capable of doing so & doing so of their own free will. That includes not being under the influence of alcohol or drugs, being of sound mind, etc.
It probably should be part of the notary laws, but I don't know that it is.
Things are often challenged in court when someone did not sign under the above criteria.
Again, I'm not an attorney & don't give legal advice--yada, yada, yada.
I hope we hear from Hugh on this one.

Reply by MW/VA on 8/19/13 11:49am
Msg #480990

Here's one for Hugh. n/m

Reply by Stephanie Santiago on 8/19/13 12:53pm
Msg #480999

It is not a law under CA notary Law - I ask for my

own benefit, to be sure the signer has awareness of said document.

Reply by JeffC/CA on 8/19/13 2:33pm
Msg #481015

Re: It is not a law under CA notary Law - I ask for my

Thanks, everyone for the great replies. I did read the CA ack. cert. right before posting, just to make sure I wasn't missing something.

Here's my take on it. I'll just use the female and singular pronoun(s):

...who proved to me on the basis of satisfactory
evidence to be the person whose name is
subscribed to the within instrument
(We're not concerned with ID for this discussion. Skip this part.)

and acknowledged
to me that she executed the same in
her authorized capacity,
(Yes Mr. notary, I executed this document as the authorized borrower, trustee, CEO, or whatever.)

and that by
her signature on the instrument the
person, or the entity upon behalf of which the
person acted, executed the instrument.
(Yes Mr. notary, that's my signature, and I have executed this document for myself, trust, corporation or whomever.)

I just can't read any more into this. Maybe we should ask "Are you the person named in this document, and did you sign the document?" Then they have acknowledged both parts of this certification statement. Again, according to the handbook, there is only the requirement to have them acknowledge that they signed it.

I think I'll use common sense and if I think someone is being coerced, I'll ask if they are signing of their own free will. By the way, I always ask any elderly person if they understand what they are signing and if they are doing so willingly, especially in a nursing home, for example.

Reply by JeffC/CA on 8/19/13 2:48pm
Msg #481017

Re: It is not a law under CA notary Law - I ask for my

I should point out that I believe "authorized capacity" doesn't just mean that a person has to be representing an "entity". I believe it also means the borrower on a loan, the grantor on a grant deed, the principle on a power of attorney, the agent or attorney-in-fact when utilizing a power of attorney, etc. So, a person signs in a certain capacity whether they are part of an entity or not. Maybe someone could clear up the word "authorized" for me.

Reply by Susan Fischer on 8/19/13 3:36pm
Msg #481028

From the Oregon Handbook:

"3. Determine the Signer’s Willingness to Sign and Awareness of What Is Being Signed
The notary, by the act of notarizing, declares that the signer did so freely and willingly. This can be especially important when people who are easily victimized must sign legal documents; i.e., minors, the infirm, and non-English speaking individuals.

The notary must make a judgment that the signer is aware of what they are signing. If the notary is questioning the awareness of the signer, the notary can engage in normal conversation with the individual. After a few minutes, it should be apparent if he or she is incoherent, disoriented, or otherwise incapacitated. When in doubt, the notary can get the opinion of a doctor or an attorney. Make sure the doctor or attorney signs the journal, and then make the appropriate notation in the journal that they attest the signer has sufficient awareness of the notarial act to execute that act."

Agree it's standard operating procedure.

Reply by Laurie Manzanares on 8/19/13 7:27pm
Msg #481089

CA Handbook 2012
pg 12
*There is no prescribed wording for the oath, but an acceptable oath would be “Do you
swear or affirm that the statements in this document are true?” When administering the oath,
the signer and notary public traditionally each raise their right hand but this is not a legal
requirement.

Pg 44
§ 2093. Officers authorized to administer oaths or affirmations (a) Every court, every judge, or clerk of any court, every justice, and every notary public, and every officer or person authorized to take testimony in any action or proceeding, or to decide upon evidence, has the power to administer oaths or affirmations.

§ 2094.Oath to witness; form
(a) An oath, affirmation, or declaration in an action or a proceeding, may be administered by obtaining an affirmative response to one of the following questions:
(1) “Do you solemnly state that the evidence you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth, so help you God?”
(2) “Do you solemnly state, under penalty of perjury, that the evidence that you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth?”

I do add: "Do you affirm that you are signing under your own free will"

I do administer an affirmation. So there is no grey area if ever questioned and have it logged in Journal.
Falls under best practice for me.

Hope this helps.