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CONTENTS:

Terms of use

Home

What is a notary public?

Notarial practice

Authentication of the notarial act

Fees

"My commission expires ..."

When a notary will decline to intervene

Copies of academic and education credentials

Foreign language documents

International wills

The origins of the notary's seal

About me


David Thomas Banner


3, Sussex Terrace, Hawthorn, South Australia 5062
Telephone: 0435 588 775
(International: + 61 435 588 775)
E-mail


WHEN A NOTARY WILL DECLINE TO INTERVENE


There are some circumstances in which a notary will decline a request for intervention. Please take this page as a non-exhaustive guide to such circumstances. If in doubt, please contact me for advice.

The Notary's Oath

Every South Australian notary has sworn the following oath, or made the following affirmation, on assuming office as a Notary:

"I . . . do swear [truly and solemnly affirm] that I will not make or attest any act, contract or instrument in which I know there is violence or fraud; and in all things I will act uprightly and justly in the business of a public notary according to the best of my skill and ability. [So help me God]."

Therefore, if there is any suggestion of violence or fraud or irregularity in any aspect of the matter, the notary will decline to intervene.

Identity

The notary will not intervene in any matter in which the identity of any party or witness cannot be verified to the notary's reasonable satisfaction. Genuine original current identity documents must be produced.

Authority

Similarly, if the appearer claims to represent another person or a company or other entity, satisfactory proof of the appearer's authority to do so must be produced, otherwise the notary will not intervene. The existence and identity of the other person or entity must also be proved.

Certain knowledge

The notary will not certify, or attest to, anything which is not within the notary's certain knowledge, or which cannot be proved to the notary's reasonable satisfaction.

Capacity

The notary will not intervene in any transaction, or in respect of any document, if the appearer lacks legal capacity, i.e., is under 18 years of age; or does not understand the nature and effect of the transaction, when it is explained; or suffers from a disabling mental illness or affective disorder.

Witnesses

Some documents call for the signatures of one or more witnesses to the signature of the appearer. A witness is a person who witnesses (sees) the appearer sign the document. It is not acceptable for a person to sign a document as a witness if that person was not present and did not see the appearer sign the document. If an appearer wishes to sign a document without the required witnesses present, the notary will refuse to intervene.

Breach of Australian or foreign law

The notary will refuse to intervene when he or she knows or suspects that the transaction or the intent of the appearer will be a breach of Australian law or the law of a foreign jurisdiction.

Breach of international law or obligation

The notary will also refuse  to intervene in the case of a known or suspected breach of international legal obligations, including economic and trade sanctions regimes. Please see the "Sanctions Regimes" website of the Australian Department of Foreign Affairs and Trade.

Blank spaces in documents, or missing components

The notary will not intervene or administer an oath or affirmation, or take a declaration if the text of the document includes unfilled spaces, or if it refers to exhibits, annexures or attachments which are not produced with the document.

Documentation of some financial transactions

The notary must approach financial transaction documents with extreme caution. Documents such as contracts of guarantee (or indemnity or surety), mortgages, loans and the like present particular dangers. Such documents may include terms to the effect that the notary certifies that the document has been read aloud to the signatory, and/or that the notary has explained, and the signatory has a full understanding and appreciation of, all the risks, legal or otherwise, of entering into the transaction. The effect of such certification, if provided by the notary, may be to transfer all the risks of the transaction to the notary personally.

Documents created for domestic purposes

Although notaries are authorised to administer oaths and certify copy documents and perform other functions under many Australian laws, they will usually not perform these functions for purely domestic Australian purposes. Commissioners for Taking Affidavits and Justices of The Peace provide these services.

Documents in forms prescribed by Australian laws

The notary will generally not intervene in respect of documents prepared in compliance with forms prescribed by Australian laws for Australian domestic purposes. Such documents are unlikely to be effective, or acceptable, in foreign jurisdictions. A commonly seen example of such a document is the enduring power of attorney prescribed under the South Australian Powers of Attorney and Agency Act 1984.

Documents written in a foreign language

If a document is written in a foreign language, and the notary is not competent to read that language, the notary will generally not intervene unless a reliable translation of the document is produced.

Documents for which some imagined higher level of authenticity or status is sought

There is a common misconception that the mere presence of a notary's signature and seal on an otherwise ordinary document will confer on that document some special degree of authenticity or status to which it would not otherwise be entitled. A notary's seal affixed to a document, accompanied or not by the notary's signature, is meaningless unless it is preceded by a legitimate, effective certificate. A request for a notary to sign and seal a document merely to give that document a certain cachet, or to enable it to be further decorated with an apostille or authentication, will be declined.

Bogus documents

It is not unknown for appearers to demand notarial intervention in respect of documents full of pompous pseudo-legal nonsense. Such documents are devoid of legal substance, and meaningless, and are usually intended for some disreputable purpose. The notary will have nothing to do with them.