Witnesses to the Transaction

When are Witnesses Required to be Present for the Notarial Act?
ASN Hot Tip, July 2008-#1

The Situation:  The document that has been brought to our ASN member notary has spaces for the signatures of two witnesses.

The Notary’s Dilemma:  Do the witnesses have to be present for the performance of the notarial act?

The Solution:  The purpose of a witness is to physically see the signer sign the document. The witness’s signature on the document attests to that fact.

The type of notarial act that a particular document requires affects whether or not the witnesses to the signing of the document must appear with the document signer for the performance of the notarial act.

If the document requires an oath/affirmation notarial act, the witnesses will always be present because the signer is required to sign in the presence of the notary as part of the performance of the notarial act. The witnesses sign the document after the signer has affixed his or her signature to the document in the presence of the notary and the witnesses.

If the document requires an acknowledgment notarial act, there can be two possible scenarios:

1. The signer arrives with the document unsigned. He plans to sign the document during the performance of the notarial act. In this scenario, the witnesses would have to be present with the document signer and notary in order to witness the principal signer stroking his or her signature onto the document.
2. The signer arrives with the document already signed and with the signatures of the witnesses in place. Remember that a document requiring an acknowledgment notarial act does not have to be signed in the presence of the notary. In this scenario, the witnesses would have already done their job by watching the signer sign the document at some time before the performance of the notarial act and signing the document as witnesses. Although the principal signer of the document must be present for the performance of the notarial act, the witnesses would not have to be present. There is one thing to check in this case: if the principal signer and witnesses have written the date next to their signatures, these dates should all be the same.

In all cases, whether the witnesses are present or not, the notary would record the names of witnesses in the recordbook entry that correlates to the document/notarial act.

Questions, comments on this Hot Tip?  Email support@asnnotary.org

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