"All notarial acts and instruments may be received in evidence without further proof as being duly authenticated in accordance with the requirements of law unless the contrary is proved".
Civil Procedure Rules - Rule 32.20
What does attestation mean and how is it significant for the work of a scrivener notary?
Attestation is a form of proof that enables a document executed in England and Wales to be accepted by authorities in a jurisdiction outside the United Kingdom. It involves the signing of a statement by a witness to confirm that a document was signed in their presence.
In those cases where English law requires attestation it is generally not necessary that the witness should have a particular qualification other than being of legal age and of sound mind. There are exceptions. A person may be prevented from acting as a witness due to a conflict of interest. A gift made in a will to an attesting witness will be void. Where a lasting power of attorney is being executed under mental capacity legislation, the attorney and donor cannot mutually act as witnesses.
How do you write an attestation statement?
Under English law an instrument is validly executed as a deed by an individual if it is signed by him or her in the presence of a witness who attests the signature. The form of an attestation statement will vary depending on the type of document and its purpose. It will typically include the details of the signatory, witness or certifying party, the address and the date of signature.
When is an attestation statement required?
The requirement for attestation depends on the nature of the document and the jurisdiction in which it is to used. Documents such as deeds typically require the attestation of the witness to be placed on the document after the signature of the executing party. A will is a good example of a document in English law requiring an attestation statement. The signature of the testator is attested by two witnesses who certify that they were in each other’s presence and that of the testator on the date of signature. There are various court cases in English succession law that explore the validity of attestation clauses in wills.
A lasting power of attorney made under the Mental Capacity Act is another example of a document that requires attestation. There is a public interest in ascertaining the identity of the grantor and their capacity. The person attesting the signature is described as being a “certificate provider”. That person must be at least 18 years old and a friend or colleague who has known the grantor well for at least two years. Alternatively, the person attesting the grantor’s signature can have the professional skills to judge whether the grantor has the capacity and free will to execute the power of attorney. These professional skills are the characteristic of a scrivener notary and are central to the process of attestation.
What is the difference between attestation and notarisation?
Notarisation is a generic term that describes the act of certification or attestation when performed by a notary. A scrivener notary may be called upon to attest a document and does so by means of a notarial certificate – or notarisation. The notarial attestation will either be written or subscribed on the signed document itself or printed on a separate notarial certificate. The process is variously described as notarisation, notarial authentication or notarial certification. It is a key function of the scrivener notary, providing certified evidence that a document has been validly signed by an individual or entity in accordance with the formalities required by English law.
Notaries will be concerned with the form and manner of the document when it is to be used in a foreign jurisdiction. The basic principle for attestation is to consider the law of the place in which the document is signed – locus regit actum. Attestation of signatures in this instance is the procedure whereby a Scrivener Notary witnesses and certifies the document. The attestation clause itself is the statement or certificate issued by the notary to confirm that the document has been executed or is authentic. The structure of the attestation may vary depending on the type of document being executed and the requirements of the receiving jurisdiction. Consideration should also be given to foreign law in matters of certification or attestation, particularly if there is a requirement for an authentic act or notarial act in public form.
What is an authentic act or a notarial act in public form?
An authentic act or notarial act in public form is a narrative text in which the authenticating or attesting officer (a notary) records the statements being made by the person or corporation executing the transaction. It is much more than a simple attestation of signature. The notary is the writer and certifying party of the entire instrument, recording the statements of the parties and attesting their identity and capacity as part of the certification process. The presence of any witnesses will be confirmed. The notary will typically conclude the document with a statement to attest or certify that the document was read over to the parties and signed by them.
An authentic act or notarial act in public form is common when the transaction in the receiving jurisdiction relates to a matter that concerns a public authority: such as an inheritance or the ownership or land. A scrivener notary should be able to certify or attest such documents correctly, enabling them to be recognised without difficulty in the receiving jurisdiction.
What is legalisation and how does this differ from attestation and notarisation?
Legalisation is the formality by which the consular agents of the country in which a document is produced certify the authenticity of the signature and the capacity in which the person signing the document has acted. This sounds remarkably like the various forms of attestation and notarisation described above and the formality is occasionally described as consularisation.
The Hague Convention of October 5 1961 abolished the requirements for legalisation of documents which have been certified in the territory of one contracting state and which are to be produced in the territory of another contracting state. Contracting states agree to accept notarial acts or other documents that have been certified or attested by a notary, provided that the notarial act is accompanied by a certificate known as an “apostille” that attests the notary’s signature.
For more details on the requirements of legalisation please visit our Legalisation Services page.