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Notary Basics: Determining A Signer’s Willingness

senior-signer-resized.jpgUpdated 5-15-18. A crucial part of a Notary's responsibilities is making sure that a person is signing a document of their own free will, without being forced into a transaction. But determining a signer’s willingness can be tricky, especially when pressure comes from a relative or caregiver. Ultimately, you must make a commonsense judgment call. Here's what to look for. 

Look For Warning Signs
 

There are a number of steps you can take to help make the proper judgment call:

Observe The Signer’s Behavior: Do they appear to be distraught, severely withdrawn, excessively nervous or fearful? Is the signer acting particularly hesitant or distracted? Are you able to pinpoint the reason for their discomfort?

Observe The Surroundings: Watch the behavior of others in the room. They have a vested interest in the documents being signed — such as a power of attorney or real property deed. Does someone nearby — a family member, business partner or caregiver — seem to be making the signer uncomfortable? Are they pressuring or coercing the signer?

Speak Privately With The Signer: If you feel the signer is being pressured by others in the room, ask to be left alone with the signer. Observe if the signer’s behavior changes, or if they continue to hesitate. 

Ask Direct Questions: If in doubt, be direct and ask: “Are you signing this document of your own free will?” This gives the signer a chance to speak the truth. 

Make Eye Contact: A signer’s ability to look you in the eyes may be telling. Keep in mind, however, that a lack of eye contact isn’t generally reason enough to be suspicious.

Don’t Rush To Judgment: Take into account all the circumstances of the signing. Indications of worry, fear or timidity may not necessarily be the result of coercion. The signer may simply be concerned about the documents or circumstances surrounding the transaction. Consider the possible emotional impact before making a judgment.

What To Do If Your Signer Appears To Be Coerced Or Unwilling
 

If, after going through these steps, you believe the signer is being pressured into signing, you should refuse to complete the notarization.

Some states specifically require Notaries to refuse to perform the notarization, while other states allow you to refuse.

Massachusetts, Mississippi and New Mexico, for example, specifically prohibit Notaries from performing notarizations in which they have a “compelling doubt” that the signer is acting of his or her own free will. Florida does not allow notarizing if the signer appears incapable of understanding the nature of the document at the time of notarization. Texas authorizes Notaries to turn down a notarization if the Notary has reasonable grounds to believe the signer is being coerced. 

In North and South Carolina, the Notary certifies that the signer did not appear to be acting involuntarily, under duress or undue influence. Thus, if a signer appears unwilling to sign, North and South Carolina Notaries should refuse the notarization.

States that have adopted the Revised Uniform Law on Notarial Acts (RULONA), (including Iowa, North Dakota, Oregon, West Virginia and Montana), give Notaries the ability to refuse to perform a notarization if they are not satisfied that the signer is willing to sign of their own accord. Georgia law contains a similar provision.

While California does not directly address determining a signer's willingness in its laws, the state Notary Public Handbook does say that the signer and Notary must be able to communicate directly with each other. If a signer cannot communicate except indirectly through an interpreter or other party, a California Notary should not proceed with the notarization. 

If you have questions about the signer’s willingness, make a note in your notarial journal of the steps you took to decide whether to perform the notarization.

If you do not keep a journal, document your reason as well as the steps you took to make your decision.

One Final Word On Safety
 

If you feel you may be in imminent danger if you refuse a notarization, you should go ahead and complete it, and then report the situation immediately afterwards to your local law enforcement.

Kelle Clarke is a regular contributor to the National Notary Association.

You can learn about Notary practices for your state from your state's Notary regulating agency website your state’s Notary handbook. Or check out the NNA’s Notary Primers or U.S. Notary Reference Manual, which is a NNA member benefit. The NNA’s Notary Essentials eLearning course guides you through all your state's requirements.

Additional Resources:

NNA Hotline

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13 Comments

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Roland Smith

08 Jun 2015

The last paragraph says you can notarize the document and then report it. Whom do you report it to?

Concetta Brady-Gleim

08 Jun 2015

Thank you for the helpful info.

John Clark

08 Jun 2015

How about the opposite? That is, the appearance of fraud in the demeanor of the signer. I had a customer come to me for an acknowledgment of his signature over a declaration of intent, to be unsworn, and therefore did not require a jury. It was to do with a separation agreement with his wife, which would require her signature too. The paper he claimed had been prepared by her attorney, but its unprofessional appearance belied that. I walked away.

Khalid M Rana

08 Jun 2015

I agree with explanation. A Notary should make a note mystifying his refusal not to notarized a document.

Sean M Henigan

10 Jun 2015

"One Final Word On Notary Safety: then report the situation immediately afterwards." I would report it to the local law enforcement agency responsible for the jurisdiction of the location where the forced notarization occurred, whether that be the police, sheriff, constable or whomever. Also, that state's Secretary of State, Attorney General, etc. Then, a lawsuit. Of course, I, myself, have a series of legally-allowed steps that I would take in addition to those steps that I have outlined, here. But, I'm not going to specify what those steps are, as they are highly-individualized and not necessarily-appropriate for all persons. My specialized knowledge about the allowances for escalated action are not steps that most people are willing to take. But, if I feel that I'm being threatened in any way, whatsoever, I have the right to pursue the course of action that I feel is most right for me. That is all! JMHO

Julie

10 Dec 2015

So if you determine the signer is being coerced, threatened, bullied, etc. into signing the document and you know that if you do not notarize the document, it puts the signer in imminent danger or unfavorable living conditions. This article says to refuse the notarization and report to authorities. In my opinion, I would still notarize the document and report my findings as well. I know a few people in the court system and know I would be directed to the right 'authority' as well as my observation(s) be documented appropriately. Would this be the right thing to do?

mtringali33408@gmail.com

31 May 2016

Does the notary reserve the right to "not notarize" upon request if the attorney has all the proper identification? Is there any sanction against a notary for not doing his/her job?

National Notary Association

03 Jun 2016

Hello. Normally a Notary is expected to honor any reasonable request for service if the request is lawful, the signer has all necessary ID and the request is made at a reasonable time. Usually a Notary will only refuse if there is an issue such as the signer lacking proper ID or if the Notary is concerned the signer is unwilling or does not understand what he or she is signing. Can you tell us more about why the Notary wished to refuse this particular request?

James

06 Jun 2016

I've gotten mixed answers regarding when and when not a Notary may refuse to notarize a document. The NJ Handbook doesn't talk much about it, but elsewhere in the law it explicitly states that any Public Official may refuse to discharge their duties if they have reasonable cause to believe that illegal activity may arise from it, or if they suspect fraud, or any other "compelling" reason not to, but isn't clear what "compelling" means. Also with NJ state law, there seems to be some kind of confusion on what a "public official" is, which would complicate things, since NJ never actually gives a concise definition but has issued contradictory claims. For example, it states that a public official is only someone who is appointed or elected at the state or county level, but that it must generate a source of income for the official. Notaries sometimes get income if they're a signing agent, but not always, so I'm not sure. But a 16 year old volunteer firefighter was charged with "official misconduct" after starting a fire 5 years ago (in addition to being charged with arson). All in all, I think the laws need some clarity....

GAYTRI

05 Jun 2017

Good explaination

Christi Causey

12 Jun 2017

ok

Myrna Ayala Rivera

31 Jul 2017

This is something that has become more often everyday. We must keep alert.

Constance Smith

19 Jul 2018

i signd a quiit rlas fopr our hom under dures after divorce. he sold home in2015 for great profit. wont speak to me now. i think h should pay me what i put into home before i found he was a cereal cheater. bhe litrally lead me by the hand to title company and paperwork was already filledout, no judge, people that worked in office were staring as if they couldnt believe it. he scammed me when i never made him buy me out!

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