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Notary Bulletin

Notary E&O claim for providing legal advice denied

Errors and Omissions insurance can protect the Notary’s financial assets if the Notary makes a mistake while performing a notarial act. But watch out, because if you offer legal advice about a document, your E&O policy may not cover you for any resulting damages, as a real-life Notary’s claim from last year demonstrates.

The Notary was asked to notarize a signature on a customer’s last will and testament. During the notarization, the Notary advised the customer as to the number of witnesses that would be required to witness the signing of the will — and it turned out the advice the Notary gave was wrong.

As a result, after the customer passed away, the will could not be probated because it lacked the necessary number of witnesses. The Notary was contacted by an attorney alleging that the Notary had committed the unauthorized practice of law (UPL).

The Notary filed an E&O claim with the Notary’s insurance company, but the claim was denied because the Notary was not authorized under the term of its commission to give legal advice. Since the insurer determined that giving legal advice to a customer is not an authorized notarial act, there was no coverage under the E&O policy for UPL.

While the specific facts of each claim must be examined in accordance with applicable law and the provisions of the E&O policy to determine if coverage exists, Notaries who are not licensed attorneys representing clients specifically in their capacity as a lawyer should never instruct customers how to prepare documents or answer questions about the legal requirements or legal effects of any document. Even if you think you know what to do, if your advice causes problems for the document or the document’s signer, you could be held personally liable for the consequences.

The simplest way to avoid potential liability is to follow this advice: Never give advice of any kind. Providing unauthorized legal advice may not be covered under your Notary E&O policy and could potentially result in you paying hefty financial damages, being charged with a crime in some states, or having your commission suspended or revoked.

David Thun is an Associate Editor with the National Notary Association.

 

 

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7 Comments

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BetterNotaries.com

11 Jan 2021

What's the law or rule on adding either a certificate or journal entry where the signer signs or initials a statement saying no legal advice was given by the notary during the signing.

National Notary Association

15 Jan 2021

Hello. Unless the signer is requesting that you notarize a signature or perform another notarial act on the statement you describe, it would not be appropriate for you to attach certificate wording. The only time you should complete and attach a notarial certificate to a document is when you are asked to perform a notarization and the document does not include the appropriate notarial certificate wording.

Ardel Richter

11 Jan 2021

I realize that the following isn't the issue you presented, but...what ARE you exactly saying... That if a notary knows that 2 witnesses are required, but there's only 1...the notary should just notarize the document? How is that going to work out? Shouldn't the notary suggest they seek legal advice? I think your article would be a lot more helpful if you tell notaries what they should do when presented with a notarization that will not be acceptable under the laws of their state. Suggest they seek legal advice? Refuse to notarize?

Matt Miller

12 Jan 2021

You didn't mention whether or not the notary held a policy that the NNA sells?

huntsvillemobilenotary@gmail.com

18 Jan 2021

Excellent article. I'm in Alabama and this situation comes up a lot when the signer uses a DIY Last Will and Testament.

Susan Jackson

20 Jan 2021

I had a person ask me to notarize a holographic will. I told her these types of wills are not notarized in Nevada. Was this giving legal advice.

National Notary Association

21 Jan 2021

Hello. Nonattorney Notaries should not give instructions or advice to signers whether or not a document requires notarization. For more information, please see here: https://www.nationalnotary.org/notary-bulletin/blog/2015/07/notary-basics-avoiding-unauthorized-practice-of-law

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